Citation Nr: 1319435 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 08-22 893 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a left leg (shin) disorder. 2. Entitlement to service connection for residuals of a left ankle fracture, including tarsal tunnel syndrome. 3. Entitlement to service connection for degenerative joint disease (arthritis) of the right foot. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran served on active duty from August 1980 to November 1985. He appealed to the Board of Veterans' Appeals (Board/BVA) from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The RO in Waco, Texas, subsequently assumed jurisdiction over the claims and certified them to the Board. In support of his claims, the Veteran testified at a videoconference hearing in April 2009 before the undersigned Veterans Law Judge of the Board, who the Chairman had designated to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2), and who is rendering the determination in this appeal. A transcript of the hearing testimony is in the claims file. The Board remanded the claims in March 2010 for further development. Regrettably, however, the claims of entitlement to service connection for residuals of a left ankle fracture and right foot degenerative joint disease require still further development before being decided on appeal. So the Board is again remanding these claims. Whereas the Board, instead, is going ahead and deciding the claim for a left leg (shin) disorder. FINDING OF FACT The Veteran does not have a diagnosed left shin disorder and has not at any point since the filing of his claim for this condition. CONCLUSION OF LAW It is not shown he has a left shin disorder or any associated disability, much less the result of disease or injury incurred in or aggravated by his active military service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 A. Duty to Notify Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, including apprising him of the information and evidence that VA will obtain versus that information and evidence he is expected to provide. 38 C.F.R. § 3.159 (2012). When the claim is for service connection, this notice should include indication that a "downstream" disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007) (observing that a claim of entitlement to service connection consists of five elements: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date. So compliance with the holding in Quartuccio v. Principi, 16 Vet. App. 183 (2002), requires apprising the Veteran of all five of these elements of the claim, including the "downstream" disability rating and effective date elements. See Dingess, at 486. Also, at least ideally, the notice should precede the initial adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). If, however, for whatever reason there was not notice prior to initially adjudicating the claim or, if there was, but it was inadequate or incomplete, this timing error in the provision of notice can be effectively "cured" by providing any necessary VCAA notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC) - such that the intended purpose of the notice is not frustrated, rather preserved, and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). VA notice and assistance errors are not presumptively prejudicial, even when for the sake of argument they are shown to have occurred. Rather, they must be judged on a case-by-case basis. And as the pleading party attacking VA's decision, the Veteran, not VA, bears this evidentiary burden of proof of not only establishing error, but also, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Here, prior to initially adjudicating his claim, so in the preferred sequence, a letter dated in December 2006 was sent to the Veteran in accordance with the duty to notify provisions of the VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). He was notified of the evidence needed to substantiate his claim, of the information and evidence that VA would obtain, of the information and evidence he was expected to provide, and told that VA would assist him in obtaining evidence, but that it was his responsibility to provide VA with any evidence pertaining to his claim. He therefore has received all required notice concerning his claim. B. Duty to Assist This additional duty includes assistance in obtaining potentially relevant records, such as service treatment records (STRs) and post-service VA and private medical evaluation and treatment records, as well as the provision of an examination - including for a medical opinion - when necessary to make a decision on the claim. To this end, the Veteran's STRs, VA treatment records, private treatment records, lay statements, and hearing transcript have been obtained and associated with his claims file for consideration in deciding his appeal. He also had VA examinations. See 38 U.S.C.A. § 5103A(d)(2) and 38 C.F.R. § 3.159(c)(4). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006) and Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Indeed, the Board remanded this claim in March 2010, in part, to have him undergo a VA compensation examination for a medical opinion. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examinations obtained in this case are adequate as they are collectively predicated on a review of the claims file; contain a description of the history of the disability at issue; document and consider the relevant medical facts and principles; and provide opinions regarding the diagnosis and, assuming there is a diagnosis, etiology of the Veteran's claimed condition. Consequently, VA's duty to assist with respect to obtaining a VA examination or opinion for this claim has been met. 38 C.F.R. § 3.159(c)(4). Moreover, there was compliance with the Board's March 2010 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A Veteran is entitled to compliance with remand orders, and the Board itself commits error in failing to ensure compliance). But see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (another remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Veteran also as mentioned testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U. S. Court of Appeals for Veterans Claims (Court/CAVC) held that 38 C.F.R. 3.103(c)(2) requires that the Decision Review Officer (DRO) or Veterans Law Judge (VLJ) chairing a hearing fulfill two duties to comply with this VA regulation. These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked and that might tend to be advantageous to the claimant's position. Here, during the hearing, the presiding VLJ noted the basis of the prior determination and noted the elements that were lacking to substantiate the Veteran's claim. In addition, the presiding VLJ elicited testimony to support the Veteran's claim and sought to identify any pertinent evidence not then currently associated with the file that might tend to substantiate the claim. The Veteran has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conducting of the hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated his actual knowledge of the elements necessary to substantiate his claim for benefits. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate a claim). As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in § 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. VA has provided the Veteran opportunity to submit evidence and argument in support of his claim. He has not made the Board aware of any additional evidence needing to be obtained prior to appellate review, and no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Service Connection A. Applicable Law Service connection is granted if it is shown the Veteran suffers from a disability resulting from an injury sustained or a disease contracted in the line of duty during his active military service, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1131, 1153; 38 C.F.R. §§ 3.303(a), 3.306. Stated somewhat differently, to establish entitlement to direct service connection for the claimed disability, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability - or, at the very least, showing he has at some point since the filing of the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and, (3) competent and credible evidence of a relationship, or nexus, between the disease or injury in service and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). Certain diseases are considered chronic, per se, including arthritis, and therefore will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year after service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Where there is a chronic disease shown as such in service or within a presumptive period under 38 C.F.R. § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). When the disease identity is established, there is no requirement of evidentiary showing of continuity. When, however, the fact of chronicity in service is not adequately supported or legitimately questionable, then a showing of continuity of symptomatology after discharge from service is required to support the claim. Id. Establishing continuity of symptomatology under § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to show chronicity (permanency) of disease or injury in service and in turn link current disability to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). But to establish entitlement to service connection based on continuity of symptomatology, the claimant must have one of the "chronic" diseases specifically enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection also is permissible 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) (2012). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Medical evidence is generally, though not always, required to associate the claimed condition with service or a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 11 Vet. App. 148, 158 (1998); and McQueen v. West, 13 Vet. App. 237 (1999). For purposes of establishing service connection, every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C.A. §§ 1111; 38 C.F.R. § 3.304(b). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). If a condition is not noted upon entrance into service, then to rebut the presumption of soundness at service entrance VA must show by clear and unmistakable evidence both that there was a pre-existing condition and that it was not aggravated during or by the Veteran's service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003). To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence.") It is an "onerous" evidentiary standard, requiring that the pre-existence of a condition and the no-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003), citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). If, on the other hand, a pre-existing disability is noted upon entry into service, then the Veteran cannot bring a claim for service connection for that disability, only instead a claim for service-connected aggravation of that disability. And in that circumstance, 38 U.S.C.A. § 1153 applies and the burden falls on him, not VA, to establish aggravation. Wagner, 370 F.3d at 1096; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). The provisions of 38 U.S.C.A. § 1153, and its implementing VA regulation, 38 C.F.R. § 3.306, provide criteria for determining when a pre-existing disability has been aggravated. According to this statute and regulation, a pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Concerning this, mere temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, not just the symptoms, has worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. See Falzone v. Brown, 8 Vet. App. 398, 402 (1995); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); and Green v. Derwinski, 1 Vet. App. 320, 323 (1991). Moreover, in Verdon v. Brown, 8 Vet. App. 529 (1996), the Court held that the presumption of aggravation does not attach even where the pre-existing disability has been medically or surgically treated during service and the usual effects of treatment have ameliorated disability so that it is no more disabling than it was at entry into service. Only if the Veteran manages to show a chronic worsening of his pre-existing condition during his service would the presumption of aggravation apply and, in turn, require VA to then show by clear and unmistakable evidence that the worsening was not beyond the condition's natural progression. The presumption of aggravation applies only when pre-service disability increases in severity during service. Beverly v. Brown, 9 Vet. App. 402, 405 (1996); Browder v. Derwinski, 1 Vet. App. 204, 206-207 (1991). Evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the Veteran's health and medical treatment during and after military service, as evidence of whether a pre-existing condition was aggravated by military service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Independent medical evidence generally is needed to support a finding that a pre-existing disorder increased in severity during service beyond its natural progression. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). The presumption of aggravation applies where there was a worsening of the disability in service, regardless of whether the degree of worsening was enough to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 206-207 (1991). 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 additionally determine whether it is also credible). Only if the 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). 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 competent with regards 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) (dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). On the other hand, laypersons equally have been found not competent 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 seek 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. See 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 also 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"). As fact finder, when considering whether lay evidence is satisfactory, the Board may not only consider internal inconsistency of statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, but also 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). In ultimately 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). B. Evidence and Analysis The Veteran's STRs are entirely unremarkable for any complaints, treatment, or diagnoses referable to a left shin condition. Examinations in June 1980 and November 1985 revealed no relevant abnormalities. He had a VA examination in January 1994 in conjunction with a previous claim. However, there were no complaints or diagnoses pertaining to a left leg disorder, other than those adjacently associated with his left foot. A June 2007 bone scan revealed no significant abnormalities in the distal tibias. During his April 2009 videoconference hearing before the Board, the Veteran testified that he had sustained a shin injury during service while playing basketball. He said he went up for a rebound and came down on the heel of his foot. He was told he had some tissue damage, and his leg was wrapped. He claimed to have experienced ongoing problems with this leg and shin ever since. VA treatment records dated in May 2010 show he reported a history of a tibia/fibula fracture in service in 1983. He had another VA examination in January 2012. The claims file was reviewed by the examiner for the pertinent history. The Veteran identified pain as his only symptom, and he was unable to identify a specific onset date. The examiner observed there was no specific evidence of a shin condition in the claims file, although a left ankle injury in 1983 was noted. Based on a review of the file, the history the Veteran had provided, and the results of that examination, the VA examiner concluded that no left shin condition was found. She further pointed out that the intervening bone scan in 2007 had revealed no abnormalities. Based on this evidence, service connection for a left shin condition is not warranted. The record contains no actual diagnosis of a left shin condition, abnormality or other defect. Indeed, to the contrary, the VA compensation examiner specifically determined that none was present, in explanation also citing the negative bone scan that had been performed some 5 years prior to her evaluation of the Veteran. Although he had testified during his hearing that he had sustained a shin injury during his military service, while playing basketball, his STRs do not document any such injury. These records only reflect complaints referable to his feet and ankles. Because his STRs are complete or substantially complete, certainly in relevant part, it is permissible for the Board to draw a negative inference from there not having been additional mention of injury to his left shin, as he now alleges there was, because it is reasonable to assume and expect that he would have complained of this additional disability had he in fact had it at the time. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). While it is true to say he is competent to proclaim having experienced pain in his left leg and shin, etc., since the injury in service, 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." See 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). The most fundamental requirement for any claim for service connection is that the Veteran must have proof he has the condition claimed, meaning actual disability on account of it. See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997) (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 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). This is the current failing of the Veteran's claim inasmuch as the evidence does not establish he has a diagnosed left shin disorder or, for that matter, that he even has at any point since the filing of his claim for this condition. Necessarily then, there is not present-day disability to relate or attribute to his military service, including especially to the alleged trauma while playing basketball. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). In deciding this claim, the Board has reviewed all of the evidence in his claims file, both his physical claims file and electronic ("Virtual VA") file, and has an obligation to provide an adequate statement of reasons or bases supporting this decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each and every piece of evidence, certainly not in exhaustive detail. See Gonzales, 218 F.3d at 1380-81. The Board's analysis, therefore, has focused on the most salient and relevant evidence and on what this evidence shows, or fails to show, concerning the claim. He must not assume the Board has overlooked pieces of evidence that are not explicitly discussed. The law requires only that the Board address its reasons for rejecting evidence favorable to him. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board as mentioned must assess the credibility and weight of all evidence, so including both the medical and lay evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the Veteran. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When all the evidence is assembled, the Board is responsible for determining whether the evidence supports each claim or is in relative equipoise, meaning about evenly balanced for and against, with the Veteran prevailing in either event, or whether instead the preponderance of the evidence is against the claim, in which case the claim is denied. Id. Here, for the reasons and bases discussed, the preponderance of the evidence is against the claim. In this circumstance, there is no reasonable doubt to resolve in the Veteran's favor, requiring the denial of his claim. ORDER The claim of entitlement to service connection for a left leg (shin) disorder is denied. REMAND With respect to the Veteran's remaining claims of entitlement to service connection for residuals of a left ankle fracture and right foot degenerative joint disease, still further development of these claims is required. The Veteran had VA examinations in January 2012 following and as a result of the Board previously remanding these claims in March 2010. The examiner acknowledged the Veteran had a left ankle fracture in service in 1983, but determined it since had resolved with no residuals (sequelae). His current condition was attributed instead to an intervening 2006 work-related injury as a civilian. While the report of his November 1985 separation examination does state that he had sustained a prior left ankle fracture that was treated with no complications and no sequelae, he was also noted to still have mild laxity of the lateral ligaments in this ankle. This additional finding was not seemingly acknowledged or discussed by the VA compensation examiner. In addition, a January 2007 letter from a private physician noted the Veteran had sustained a work-related left foot and ankle injury in September 2006, but this physician added that the Veteran also had reported a previous history of left ankle injury and weakness. This, too, was not addressed by the VA examiner. There is no requirement that a medical examiner comment on every favorable piece of evidence in the claims file. Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012); see also Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners). However, in light of the significant probative value of medical findings documented at the time of a Veteran's discharge from service, as well as the January 2007 comments by the Veteran's private physician regarding prior ankle injury and weakness, additional medical comment is necessary before adjudicating this claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate). As for the claim concerning the right foot, the VA examiner diagnosed a right talonavicular coalition of the ankle that he said was congenital in nature, also noting this condition was not aggravated during the Veteran's service or by a superimposed injury as a result of his service. The examiner as well diagnosed pes planus (flat feet), which he indicated was also congenital, and hammertoes and clawfoot, which he concluded were not related to the Veteran's service. Earlier records reflect findings of arthritis. Specifically, private treatment records dated in February 2007 noted accelerated osteoarthritis in the talonavicular joint, and to a lesser extent in the ankle mortise. These findings suggested previous trauma. Additional VA records from September 2007 also noted bilateral foot arthritis secondary to trauma. However, the etiology of this arthritis was not discussed by the VA examiner. Although the examiner herself did not diagnose right foot arthritis as a condition, an opinion on etiology is nonetheless required. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (the current disability requirement for a service-connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim). Accordingly, these remaining claims are REMANDED for the following additional development and consideration: 1. The claims file, including a copy of this remand, should be forwarded to the examiner who performed the January 2012 VA left ankle and feet examinations. The examiner should provide additional medical comment as to the likelihood (very likely, as likely as not, or unlikely) that the Veteran's current left ankle condition was incurred in or is otherwise related to his 1983 left ankle fracture in service. In providing this supplemental opinion, the examiner must specifically address the November 1985 separation examination findings of mild ligament laxity of the left ankle, as well as the January 2007 private physician's letter referencing a left ankle injury and consequent weakness even prior to the September 2006 work-related injury. The examiner should also provide additional medical comment as to the likelihood (very likely, as likely as not, or unlikely) that the Veteran's right foot arthritis diagnosed in 2007 incepted during his service from August 1980 to November 1985, within one year of his discharge, so meaning by November 1986, or is otherwise related or attributable to his service, including especially to his 1983 reports of right foot and ankle pain in service. In forming this opinion, the examiner must specifically address the February and September 2007 treatment records noting arthritis in the right foot secondary to trauma, so post-traumatic. If these requested opinions cannot be provided without resorting to mere speculation, discuss why this is the case, such as by indicating whether more information is needed or because the limits of medical knowledge have been exhausted regarding the disabilities at issue or for whatever other reason. In other words, the examiner merely saying she cannot comment will not suffice. If the January 2012 VA examiner is not available, the claims file should be forwarded to another appropriate VA examiner, who should comply with the above instructions. If this new examiner determines that an additional examination is needed to generate the requested opinions, then one should be scheduled. 2. Ensure the opinions are responsive to the directives of this remand. If not, take corrective action. 38 C.F.R. § 4.2. 3. Then readjudicate these remaining claims for service connection in light of this and all other additional evidence. If these claims continue to be denied, send the Veteran and his representative a supplemental statement of the case and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims. The appellant has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs