Citation Nr: 1319835 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 07-04 314 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a right knee disability, to include as secondary to a service connected muscle group injury to the left thigh. 2. Entitlement to service connection for a left hip disability, to include as secondary to a service connected muscle group injury to the left thigh. 3. Entitlement to service connection for a low back disability, to include as secondary to a service connected muscle group injury to the left thigh. 4. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and generalized anxiety disorder (GAD). 5. Entitlement to service connection for residuals of frostbite to the hands, face, and feet. 6. Entitlement to an initial disability evaluation in excess of 30 percent for an injury to Muscle Group XIII. REPRESENTATION Appellant represented by: Calvin Hansen, Attorney ATTORNEY FOR THE BOARD D. M. Ames, Counsel INTRODUCTION The Veteran had active service from February 1952 to November 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2006, January 2007, and May 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The September 2006 rating decision denied service connection for the claimed right knee, left hip, and low back disabilities. The January 2007 rating decision denied service connection for PTSD and residuals of frostbite. In a May 2011 rating decision, the RO found that there was clear and unmistakable error in a previous rating decision that denied service connection for a muscle injury to Muscle Group XIII and granted service connection for the Veteran's residuals of a shell fragment wound (SFW). An initial 30 percent evaluation was assigned. A review of the Virtual VA paperless claims processing system reveals additional VA treatment records from June 2010 to November 2011 and from March 2012 to July 2012 that are not associated with the paper claims file. In the January 2013 Supplemental Statement of the Case, the RO specifically stated that the Veteran's VA treatment records from the Nebraska Western-Iowa VA Health Care System from June 2010 through November 2011 and from March 2012 to July 2012 were reviewed prior to the adjudication of the claims. Therefore there is no prejudice to the Veteran in the Board's adjudication of his claims In January 2009, the Board denied the Veteran's service connection claims. He appealed his case to the U. S. Court of Appeals for Veterans Claims (Court), and the Court granted the parties' Joint Motion for Remand (Joint Motion), vacated the Board's January 2009 denial, and remanded the matter to the Board for development consistent with the Joint Motion. Consistent with the Joint Motion, the Board has rephrased the Veteran's claim for PTSD as a claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD and GAD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (stating that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). In April 2010 the Board remanded this case to the RO via the Appeals Management Center (AMC) for further development and it has now been returned to the Board. The issue of entitlement to service connection for a cervical spine (neck) disability, claimed as due to the Veteran's service-connected muscle group injury, has been raised by a June 2006 private medical record from Franklin Memorial Hospital, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is REFERRED to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The preponderance of the evidence reflects that the Veteran does not have a right knee disability due to a service-connected disability or any incident of his active duty service. 2. The preponderance of the evidence reflects that the Veteran does not have a left hip disability due to a service-connected disability or any incident of his active duty service. 3. The preponderance of the evidence reflects that the Veteran does not have a low back disability due to a service-connected disability or any incident of his active duty service. 4. The evidence of record, to include competent medical evidence and lay evidence, is at least in equipoise as to whether the Veteran has generalized anxiety disorder that began during active service or is related to an incident of service. 5. The preponderance of the evidence reflects that the Veteran does not have residuals of frostbite to the hands, face, and feet due to any incident of his active duty service. 6. The Veteran's left thigh SFW to Muscle Group XIII is manifested by ragged, depressed, and adherent scars, he retains a 3 millimeter foreign body in his posterior thigh muscle, and complains of fatigue, weakness, and pain with activity. CONCLUSIONS OF LAW 1. A right knee disability was not incurred or aggravated in service and is not proximately due to, or the result of, or chronically aggravated by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012); 38 C.F.R. § 3.310 (2006). 2. A right hip disability was not incurred or aggravated in service and is not proximately due to, or the result of, or chronically aggravated by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012); 38 C.F.R. § 3.310 (2006). 3. The Veteran's low back disability was not incurred or aggravated in service and is not proximately due to, or the result of, or chronically aggravated by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012); 38 C.F.R. § 3.310 (2006). 4. The Veteran's generalized anxiety disorder was incurred in service. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 5. Residuals of frostbite to the hands, face, and feet were not incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1110, 1154, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 6. The criteria for an initial disability evaluation in excess of 30 percent for an injury to Muscle Group XIII have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.45, 4.73, Diagnostic Code 5313 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (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 of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to the Veteran's service connection claims, VA has satisfied its duty to notify by issuing pre-adjudication notice letters in July 2006 and October 2006. The letters advised the Veteran of what evidence was required to substantiate his claims, and of his and VA's respective duties for obtaining evidence. The July 2006 letter addressed what is necessary to substantiate a claim for secondary service connection. Both letters provided notice regarding the disability evaluation and effective date elements of a service connection claim. Dingess, 19 Vet. App. at 473. With regard to the Veteran's increased evaluation claim, the appeal arises from disagreement with an initial evaluation following the grant of service connection. Once service connection is granted, the claim is substantiated and additional VCAA notice is not required; any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. There has been no allegation of prejudice with regard to the notice in this case, hence further VCAA notice is not required with regard to the initial rating appeal. As noted above, the Veteran originally received VCAA notice in July 2006 and October 2006. The duty to assist provisions of the VCAA have been met. The claims file contains service treatment records (STRs), reports of post-service medical treatment, and reports of VA muscle injury and general examinations from September 2007, April 2012, and July 2012. The April 2012 and July 2012 examinations was adequate because they were based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder, and appropriate diagnostic tests. He has not been afforded VA examinations for his service connection claims. The November 2009 Joint Motion specified that the RO must offer the Veteran a VA examination at a facility closer to his home, because the Omaha VAMC is over 200 miles from his home and he is in poor health. The Joint Motion specified that the VA facilities at either Holdrege or Grand Island, Nebraska would be more appropriate. The RO scheduled the Veteran for a VA examination in September 2012 at the Omaha VAMC. The VAMC replied that the Veteran failed to report for the VA examination. Later in September 2012, the Veteran notified the RO that he was unable to drive to Omaha unassisted, he asked that the examination be conducted at a VA clinic in Holdrege, Nebraska, which was closer to his home. The Omaha VAMC informed the RO that VA did not have staff at Holdrege or Grand Island that could perform a VA examination. The Omaha VAMC informed the RO that the Veteran was provided a letter informing him that there was a VA van available to transport him to and from the Omaha VAMC, and that if he needed to stay in Omaha overnight, a hotel room would be provided by VA. The Veteran did not take advantage of these offers. Although the remand specified that the examination not be performed at the Omaha VAMC, there are no staff available at the two facilities specified in the Joint Motion. However, the Omaha VAMC attempted to provide the Veteran with numerous accommodations (e.g. van and hotel services) so that he could attend an examination in Omaha. Further, the record shows that he went to the Omaha VAMC in April 2012 for numerous other examinations, indicating that he is capable to report there. Good cause has not been shown for his failure to report for his September 2012 VA examination, especially in light of the van and hotel services offered by the Omaha VAMC. This case was remanded in April 2010 so that additional VA and private treatment records could be obtained and so the Veteran could be afforded VA examinations for his right knee, left hip, low back, and psychiatric disorders. The RO obtained outstanding VA and private treatment records. However, in December 2011 the RO made a formal finding that VA treatment records from 1954 from the VAMC in Grand Island were not available. Two requests were made and two negative replies were received. The Veteran was informed in September 2011 that the records were not obtained. The RO concluded that all efforts to obtain them had been exhausted and further attempts would be futile. The Board is satisfied that there was substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Court has routinely affirmed Board decisions where it provides an explanation for any deviation in its remand instructions. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008). The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claims. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). Service Connection Claims Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303(a),(b), 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). With regard to his claims for service connection for a right knee, left hip, and low back disability, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b) (2010); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). A claim for secondary service connection requires medical evidence that connects the asserted secondary disorder to the service-connected disability. Velez v. West, 11 Vet. App. 148, 158 (1998). In order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran filed his secondary service connection claims in January 2006. The provisions of 38 C.F.R. § 3.310 were amended, effective October 10, 2006; however, and the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744-47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen, 7 Vet. App. at 448, the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. The Veteran's claim was pending prior to the effective date of the amended regulation. Consequently, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the Veteran because it does not require the establishment of a baseline before an award of service connection may be made. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Right Knee Disability In his January 2006 claim, the Veteran asserted that he currently has a right knee disability because he has favored his left leg since his SFW in service. There is no medical evidence of record showing that the Veteran has been diagnosed with a right knee disability. The Veteran is competent to report observable symptoms, such as knee pain. Layno v. Brown, 6 Vet. App. 465 (1994). Further, his statement that he experiences a right knee problem is also credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). However, the Veteran's subjective report of a right knee disability is not confirmed by any other evidence of record. 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). The Veteran has not identified a specific medical condition. Further, he has not reported that he was diagnosed with a right knee disability by a medical professional. Lastly, his assertion that he has a right knee disability has not been used to support a later diagnosis by a medical professional. The evidence does not show that the Veteran has a current right knee disability. The first element of a service connection claim has not been satisfied. Hickson, 12 Vet. App. at 253; Wallin, 11 Vet. App. at 512. The Veteran has a service-connected injury to Muscle Group XIII, satisfying the second element of a secondary service connection claim. Wallin, 11 Vet. App. at 512. Even if the Veteran had a right knee disability, there is no evidence of record linking this condition to his period of active duty or to his service-connected injury to Muscle Group XIII. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether his unspecified right knee disability was caused by his service-connected muscle injury, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). His opinion is not probative. As discussed above, VA has attempted to provide the Veteran with VA examinations to determine the etiology of his claimed right knee disability. He failed to report for examinations in 2006 because he was in poor health. Good cause having been shown, the RO attempted to schedule him for a VA examination in September 2012 and he failed to report to it even though he was offered free transportation to and from the Omaha VAMC and overnight accommodations if necessary. Notably, he has presented for other VA examinations and treatment at the Omaha VAMC. 38 C.F.R. § 3.655 provides that certain action will be taken when a claimant, without "good cause," fails to report for a scheduled examination or reexamination. The regulation states that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record; and, when an examination is scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. There is no evidence that the Veteran did not receive notice of the examination and the presumption of regularity of the administrative process has not been rebutted by clear and convincing evidence. See Matthews v. Principi, 19 Vet. App. 23 (2005); Mindenhall v. Brown, 7 Vet. App. 271 (1994); see also Kyhn v. Shinseki, 23 Vet. App. 335 (2010), affirmed by Kyhn v. Shinseki, 24 Vet. App. 228 (2011). The Veteran has not shown good cause for his failure to report for the September 2012 examination. See 38 C.F.R. § 3.655. While the requested examination and opinion could possibly have yielded evidence favorable to the Veteran's claim, he has not fully cooperated in VA's efforts to obtain such evidence. Individuals applying for VA benefits have a responsibility to cooperate with the agency in the gathering of the evidence necessary to establish allowance of benefits. See Morris v. Derwinski, 1 Vet. App. 260, 264 (1991). Moreover, VA's duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); Swann v. Brown, 5 Vet. App. 229, 233 (1993). Accordingly, the matter must be decided based upon the evidence of record. See 38 C.F.R. § 3.655. There are no medical opinions of record that address whether there is a nexus between the Veteran's claimed right knee disability and his service-connected muscle group injury or his period of active military service. Aside from the Veteran's assertion that he has a right knee disability caused by his muscle group injury, the record is silent with regard to his right knee, and as discussed above, that opinion is not probative evidence. The nexus element of a service connection claim is not satisfied. Hickson, 12 Vet. App. at 253; Wallin, 11 Vet. App. at 512. The preponderance of the evidence is against a finding that the Veteran has a right knee disability that is due to any event or injury in service or to his service-connected muscle group injury. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable and his claim is denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Left Hip Disability In his January 2006 claim, the Veteran asserted that he has a left hip disability caused by favoring his left leg due to his service-connected muscle group injury. A March 2012 private medical record showed that he complained of left hip pain. He was diagnosed with left hip pain, and informed that he may need a left hip replacement in the future. The basis for this equivocal prediction is unclear. Pain alone, without a diagnosis or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). The Veteran has not asserted a specific left hip condition, and the only medical evidence of record pertaining to his left hip identifies pain, a condition that cannot serve as the basis for a grant of service connection. The first element of a service connection claim has not been met. Hickson, 12 Vet. App. at 253; Wallin, 11 Vet. App. at 512. The Veteran has a service-connected injury to Muscle Group XIII, satisfying the second element of a secondary service connection claim. Wallin, 11 Vet. App. at 512. Even if the Veteran had a left disability, which he may very well have given the prediction of future hip replacement, there is no evidence of record linking this condition to his period of active duty or to his service connected injury to Muscle Group XIII. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether his claimed left hip disability was caused by his service-connected muscle injury, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). His opinion is not probative. As discussed above, VA has attempted to provide the Veteran with VA examinations to determine the etiology of his claimed left hip disability. As discussed above, the RO attempted to schedule him for a VA examination in September 2012 and he failed to report to it without showing good cause. For the reasons addressed above, the matter must be decided based upon the evidence of record. See 38 C.F.R. § 3.655. There are no medical opinions of record that address whether there is a nexus between the Veteran's claimed left hip disability and his service-connected muscle group injury or his period of active military service. Aside from the Veteran's assertion that he has a left hip disability caused by his muscle group injury, the record is silent with regard to his left hip aside from a March 2012 diagnosis of left hip pain, and as discussed above, the Veteran's lay opinion is not probative evidence. The nexus element of a service connection claim is not satisfied. Hickson, 12 Vet. App. at 253; Wallin, 11 Vet. App. at 512. The preponderance of the evidence is against a finding that the Veteran has a left hip disability that is due to any event or injury in service or to his service-connected muscle group injury. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable and his claim is denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Low Back Disability The Veteran asserts that he has a low back disability that was caused by his service-connected muscle group injury. November 2010 records from Dr. J. H., a private physician, reflect a diagnosis of moderate degenerative disc disease (DDD), most pronounced at L5-S1. The first element of a service connection claim is satisfied. Hickson, 12 Vet. App. at 253; Wallin, 11 Vet. App. at 512. The Veteran has not asserted that his DDD was caused directly by his period of active duty service, as noted above he specifically asserted that it was caused by his service-connected disability. Therefore, the second element of a direct service connection claim has not been satisfied. Hickson, 12 Vet. App. at 253. The Veteran has a service-connected injury to Muscle Group XIII, satisfying the second element of a secondary service connection claim. Wallin, 11 Vet. App. at 512. However, there is no evidence of record linking his DDD to his service-connected injury to Muscle Group XIII. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether his claimed DDD was caused by his service-connected muscle injury, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). His opinion is not probative. As discussed above, VA has attempted to provide the Veteran with VA examinations to determine the etiology of his claimed low back disability. As discussed above, the RO attempted to schedule him for a VA examination in September 2012 and he failed to report to it without showing good cause. For the reasons addressed above, the matter must be decided based upon the evidence of record. See 38 C.F.R. § 3.655. The Veteran's private medical records address his low back disability. In October 2004, he complained of low back pain that began "a long time ago." A private medical report by K. N., a registered nurse, from June 2006 noted that the Veteran reported "back injuries as related to his service in the Korean War." However, this statement was included in the medical history portion of the record and the low back disability was not discussed in the physical examination section of the report. K. N.'s report is a reiteration of the Veteran's lay opinion, which as discussed above, is not probative. In November 2010, Dr. J. H. diagnosed him with DDD based on x-ray results. In June 2012 Dr. M. M. treated the Veteran for DDD and stenosis. Neither of these private medical records address whether there is a link between the Veteran's low back disability and his service-connected muscle group injury or his period of active duty service. There are no medical opinions of record that address whether there is a nexus between the Veteran's low back disability and his service-connected muscle group injury or his period of active military service. Aside from the Veteran's assertion that his DDD was caused by his muscle group injury, the record is silent with regard to a link between the two, and as discussed above, the Veteran's lay opinion is not probative evidence. The nexus element of a service connection claim is not satisfied. Hickson, 12 Vet. App. at 253; Wallin, 11 Vet. App. at 512. The preponderance of the evidence is against a finding that the Veteran's low back disability is due to any event or injury in service or to his service-connected muscle group injury. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable and his claim is denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Acquired Psychiatric Disorder The Veteran asserts that he has PTSD as the result of experiencing combat while serving in Korea. A private medical record from Drs. B. B. and M. C. show that the Veteran has been diagnosed with GAD and panic disorder, satisfying the first element of a service connection claim. Hickson, 12 Vet. App. at 253. The record does not show that the Veteran has been diagnosed with PTSD under criteria set forth in The American Psychiatric Association: Diagnostic And Statistical Manual Of Mental Disorders, (4th ed. 1994) (DSM- IV). 38 C.F.R. § 4.125 (2012). Under 38 U.S.C.A. § 1154(b) (West 2002), a combat veteran's assertions of an event during combat are to be presumed if consistent with the time, place, and circumstances of such service. Collette v. Brown, 82 F.3d 289 (Fed. Cir. 1996). However, 38 U.S.C.A. § 1154(b) can only be used to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder. See Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996). 38 U.S.C.A. § 1154(b) does not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. The evidence must still establish by competent, credible evidence tending to show a current disability and a nexus between that disability and the in-service events. See Gregory v. Brown, 8 Vet. App. 563, 567 (1996); see also Kessel v. West, 13 Vet. App. 9, 17-19 (1999). In light of the Veteran's combat service, the Board presumes that he suffered traumatic events, but the evidence still must indicate current disabilities related to these events. The second element of a service connection claim is satisfied. Hickson, 12 Vet. App. at 253. In October 2006, Drs. B. B. and M. C., private psychologists, examined the Veteran. He reported that he was drafted and served in Korea. There, he experienced night fighting and mortar attacks. He fired his weapon at night and assumed that he killed enemy soldiers even though he was too far away from them to know with certainty. He stated that his entire squad was killed by artillery fire. Dr. B. B. stated that "...as [the Veteran] was telling me this he did display some of the most difficult facial twitching that I have ever experienced in talking with veterans. At this point he attempted to tell me the names of the men who were killed in his squad but he became so depressed that his voice trailed off ...[.]" The psychologists diagnosed GAD and panic disorder and noted that the Veteran was experiencing deterioration because of his anxiety. Although the Veteran displayed some symptoms of PTSD, those had "leveled off," and he described what was more accurately described as an "abreaction" instead of flashbacks. The psychologists stated that the Veteran is "...the type of individual who for all practical purposes, has adjusted well as one could to the horrific experiences he had in Korea... and so it is as likely as not that his problems arising from the experience he had in Korea form an almost perfect nexus with the difficulties he is experiencing psychologically at the present time." The Veteran's prognosis was "highly guarded" and "probably negative." The opinion from Drs. B. B. and M. C. provides highly probative evidence in favor of the Veteran's claim. There is no evidence of record to contradict their opinion. The nexus element of a service connection claim is satisfied. Hickson, 12 Vet. App. at 253. Service connection for an acquired psychiatric disorder is granted. Residuals of Frostbite to the Hands, Face, and Feet The Veteran asserts that he has residuals of frostbite on his face, hands, and feet as the result of exposure to cold weather in Korea. The Veteran's STRs and post-service treatment records are entirely negative for any diagnosis of a condition of the hands or face caused by residuals of frostbite. The Veteran's STRs do not reflect that he had frostbite in service. The Veteran is competent to report observable symptoms, such as pain. Layno v. Brown, 6 Vet. App. 465 (1994). Further, his statement that he was exposed to cold weather in combat is also credible. 38 U.S.C.A. § 1154(b); see also Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). However, the Veteran's subjective report of residuals of frostbite injuries to the hands, face, and feet are not confirmed by any other probative evidence of record. 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). The Veteran has not identified a specific medical condition. Further, he has not reported that he was diagnosed with residuals of frostbite by a medical professional. Lastly, his assertion that he has residuals of frostbite has not been used to support a later diagnosis by a medical professional. The evidence does not show that the Veteran has current residuals of frostbite. The first element of a service connection claim has not been satisfied with regard to the Veteran's hands and face. Hickson, 12 Vet. App. at 253. With regard to the Veteran's feet, in June 2006 he reported to K. M., a private registered nurse, that he had "peripheral neuropathy as related to the exposure to the extreme cold [weather] while serving in the Korean War." Upon examination, the Veteran's inability to distinguish sharp from dull sensations in his left leg was attributed to his SFW. K. N. noted that regarding peripheral neuropathy, the Veteran reported pain in both lower extremities, but primarily the left. She did not attribute this to residuals of a cold injury. The June 2006 record is not probative evidence in support of a finding that the Veteran has a disability from residuals of frostbite to the feet. The first element of a service connection claim has not been satisfied with regard to the Veteran's feet. Id. Even if the Veteran had residuals of frostbite, there is no probative evidence of record linking this condition to his period of active duty or to his service connected injury to Muscle Group XIII. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether his claimed residuals of frostbite injuries were caused by his period of active service, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). His opinion is not probative. As discussed above, the Veteran reported in June 2006 to K. M. hat he had "peripheral neuropathy as related to the exposure to the extreme cold [weather] while serving in the Korean War." This statement was included in the past medical history section of K. M.'s report and was not an opinion rendered by K. N.; instead it was the Veteran's lay opinion which, as noted above, is not probative in this case. Further, the Veteran's June 2006 report is outweighed by the findings of the April 2012 VA examiner, who diagnosed him with peripheral neuropathy of the left lower extremity only, and again attributed it to his SFW, not cold weather exposure. As discussed above, VA has attempted to provide the Veteran with VA examinations to determine the etiology of his claimed residuals of frostbite. In September 2012 and he failed to report to an examination even though he was offered free transportation to and from the Omaha VAMC and overnight accommodations if necessary. While the requested examination and opinion could possibly have yielded evidence favorable to the Veteran's claim, he has not fully cooperated in VA's efforts to obtain such evidence. For the reasons discussed above, the Veteran has not shown good cause for his failure to report for the September 2012 examination and the matter will be decided based upon the evidence of record. See 38 C.F.R. § 3.655. There are no medical opinions of record that address whether there is a nexus between the Veteran's claimed residuals of frostbite and his period of active military service. Aside from the Veteran's assertion that he has a residuals of frostbite, the record is silent with regard to cold injures to the face and hands. Further, the report from K. N. regarding the Veteran's peripheral neuropathy is not sufficient to satisfy the nexus requirement. While the Veteran's report to her that he has peripheral neuropathy due to cold injury is both competent and credible, K. N. investigated this assertion and instead attributed the Veteran's abnormal sensory examination results to his SFW. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). She did not diagnose residuals of frostbite or attribute the Veteran's reported symptoms to a cold injury. Lastly, as discussed above, the Veteran's lay opinion is also not probative evidence. The nexus element of a service connection claim is not satisfied. Hickson, 12 Vet. App. at 253. The preponderance of the evidence is against a finding that the Veteran has residuals of frostbite injuries to the face, hands, and feet that are due to any event or injury in service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable and his claim is denied. See 38 U.S.C.A. § 5107(b) ; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Increased Evaluation Claim Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2012). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1. If, as here, there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based upon the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). See also AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original rating remains in controversy when less than the maximum available benefit is awarded); Hart v. Mansfield, 21 Vet. App. 505 (2007). The law as to the evaluation of evidence and the standard of proof in Veterans' claims is reviewed above and will not be repeated here. Regulations pertinent to the evaluation of muscle group injuries state that an open comminuted fracture with muscle or tendon damage will be rated as a severe injury of the muscle group involved unless, for locations such as in the wrist or over the tibia, evidence establishes that the muscle damage is minimal. 38 C.F.R. § 4.56(a) (2012). A through-and-through injury with muscle damage shall be evaluated as no less than a moderate injury for each muscle damaged. 38 C.F.R. § 4.56(b) (2012). For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement. 38 C.F.R. § 4.56(c) (2012). Evaluation of muscle injuries as slight, moderate, moderately severe, or severe is based on the type of injury, the history and complaints of the injury, and objective findings. 38 C.F.R. § 4.56(d). 38 C.F.R. § 4.56(d) is essentially a totality-of-the-circumstances test and that no single factor is per se controlling. Robertson v. Brown, 5 Vet. App. 70 (1993); see also Tropf v. Nicholson, 20 Vet. App. 317 (2006). A slight disability of muscles is described as a simple wound of muscle without debridement or infection. The service department records would demonstrate a superficial wound with brief treatment and return to duty. Healing would be shown as having been with good functional results. No cardinal signs or symptoms of muscle disability would be shown and the scar would be minimal with no evidence of fascial defect, atrophy, or impaired tonus. There would be no impairment of function or metallic fragments retained in muscle tissue. 38 C.F.R. § 4.56(d) (2012). A moderate disability of the muscles may result from through and through or deep penetrating wounds of relatively short track by a single bullet or small shell or shrapnel fragment. The absence of the explosive effect of a high velocity missile and of residuals of debridement or of prolonged infection also reflects moderate injury. The history of the disability should be considered, including service department records or other sufficient evidence of hospitalization in service for treatment of the wound. Consistent complaints on record from the first examination forward of one or more of the cardinal symptoms of muscle wounds, particularly fatigue and fatigue-pain after moderate use, and an effect on the particular functions controlled by the injured muscles should be noted. Evidence of moderate disability includes entrance and (if present) exit scars which are linear or relatively small and so situated as to indicate relatively short track of missile through muscle tissue, signs of moderate loss of deep fascia or muscle substance or impairment of muscle tonus, and of definite weakness or failure in comparative tests. Id. A moderately severe disability of the muscles is characterized by evidence of a through and through or deep penetrating wound by a high velocity missile of small size or a large missile of low velocity, with debridement or with prolonged infection, or with sloughing of soft parts, or intermuscular cicatrization. Service department records or other sufficient evidence showing hospitalization for a prolonged period in service for treatment of a wound of severe grade should be considered. Records in the file of consistent complaints of cardinal symptoms of muscle wounds should also be noted. Evidence of unemployability due to an inability to keep up with work requirements may be considered. Objective findings should include relatively large entrance and (if present) exit scars so situated as to indicate the track of a missile through important muscle groups. Indications on palpation of moderate loss of deep fascia, or moderate loss of muscle substance or moderate loss of normal firm resistance of muscles compared with the sound side may be considered. Tests of strength and endurance of the muscle groups involved may also give evidence of marked or moderately severe loss. Id. A severe disability of the muscles is characterized by evidence of through and through or deep penetrating wound due to a high velocity missile, or large or multiple low velocity missiles, or explosive effect of a high velocity missile, or shattering bone fracture with extensive debridement or prolonged infection and sloughing of soft parts, intermuscular binding and cicatrization. Service department records or other sufficient evidence showing hospitalization for a prolonged period in service for treatment of a wound of severe grade should be considered. Records in the file of consistent complaints of cardinal symptoms of muscle wounds should also be noted. Evidence of unemployability due to an inability to keep up with work requirements may be considered. Id. Objective evidence of severe disability includes extensive ragged, depressed, and adherent scars of skin so situated as to indicate wide damage to muscle groups in the track of a missile. Palpation shows moderate or extensive loss of deep fascia or of muscle substance or soft or flabby muscles in wound area. Muscles do not swell and harden normally in contraction. Tests of strength or endurance compared with the sound side or of coordinated movements show positive evidence of severe impairment of function. Id. Diagnostic Code 5313 provides rating criteria for injuries to Muscle Group XIII, which controls extension of the hip and flexion of the knee; outward and inward rotation of the flexed knee; acting with the rectus femoris and sartorius synchronizing simultaneous flexion of hip and knee extension of the hip and knee by belt-over-pulley action at the knee joint. The muscles in this group are the posterior thigh group, and the hamstring complex of two-joint muscles (biceps femoris, semimembranous, and semitendinosus). 38 C.F.R. § 4.73. A 30 percent evaluation is warranted for a moderately severe injury and a 40 percent evaluation is warranted for a severe injury. A 40 percent evaluation is the highest available schedular revaluation for this muscle group. Id. The Veteran sustained a SFW to the left thigh in 1952. He underwent two debridements in service and had a piece of shrapnel removed from his left distal posterior thigh in 1999. After his injury, he returned to duty. A December 1954 VA examination noted that the Veteran sustained a penetrating SFW in service. Surgical attempts to remove all of the shrapnel were unsuccessful. The examiner noted that the wound became secondarily infected and the Veteran was hospitalized. In September 2007 he underwent a VA examination . He complained of pain and weakness. He used a cane or two crutches to walk. He described weekly flare ups that he believed were caused by activity or cold weather. The examiner found that there was no associated bone, nerve, vascular, or tendon injury. The examiner found that the overall functional impairment caused by the SFW was that the Veteran had difficulty walking. He had a 20 centimeter (cm) scar that was not painful or adherent. He had atrophy of the left thigh; it was 1.5 cm smaller than his right thigh. In April 2012, the Veteran underwent a VA general medical examination during which the examiner addressed his muscle injury. The examiner found that his SFW was a penetrating injury. The Veteran complained of pain and weakness with occasional spasm and achiness that was persistent. He used a cane or a walker to ambulate and reported that he was able to walk only a few yards or stand for a few minutes without an assistive device. He described weekly flare ups of muscle pain with activity. The examiner found that the Veteran did not have a hernia. The Veteran had entry and exit scars indicating the track of the missile. The scars were ragged, depressed, and adherent, indicating wide damage to the muscles in the missile track. The examiner did not find that the Veteran had entry and exit scars with adhesion to one or more long bones, the scapula, pelvic bones, the sacrum, or vertebrate, with epithelial sealing over bone rather than true skin covering in an area where bone is normally protected by muscle. The examiner found that there were no fascial defects or evidence of fascial defects. The Veteran's injury impacted muscle substance and function because he had some loss of muscle substance and measurable atrophy because his left thigh was 1.5 cm smaller than the right thigh. The Veteran had the cardinal signs of consistent weakness, lowered fatigue threshold, and occasional fatigue-pain. His muscle strength was 4/5 for Muscle Group XIII, indicating less than normal strength, which would measure as 5/5. The examiner found that the Veteran's functional impairment was not such that there no effective function remained other than that which would be equally served by amputation and use of a prosthesis. An x-ray showed a 3 mm metallic body in the soft tissues medial and posterior to the medial femoral condyle. A July 2012 VA examination report noted that the Veteran had scars impacting Muscle Group XIII that were ragged, depressed, and adherent, indicating wide damage to the muscles in the missile track. His injury created some loss of muscle substance; he had atrophy of the left thigh, which was 1.5 cm smaller than the right thigh. The Veteran's claim for a total rating based upon individual unemployability (TDIU) was granted in part because of his injury to Muscle Group XIII. The Board finds that the Veteran's disability picture more closely approximates that of a moderately severe injury. The Veteran has ragged, depressed, and adherent scars indicating wide damage to the muscles in the missile track. This is one of the criteria for a severe muscle injury. However, the April 2012 examiner found that there was no fascial defect or evidence of fascial defect. His muscles did not swell and harden abnormally in contraction. He had decreased strength in his muscles which measured at 4/5, indicating less than normal strength. However, the slight loss of strength did not indicate severe loss of function. Of the seven signs indicative of severe muscle disability, the Veteran had one: visible or measurable atrophy. 38 C.F.R. § 4.56(d)(4)(iii)(A-G) (2012). X-ray results revealed one 3 mm retained foreign body, not multiple foreign bodies. His scars were not adherent to one of the long bones, scapula, pelvic bones, sacrum, or vertebrae. He did not have epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle. He did not have adaptive contraction of an opposite group of muscles. He did not have atrophy of muscle groups not in the track of the missile. Lastly, he did not have induration or atrophy of an entire muscle following a simple piercing by a projectile. Id. Reviewing the evidence, the Board finds that the overall disability picture for the Veteran's muscle group injury does not more closely approximate an initial 40 percent rating. 38 C.F.R. § 4.7. The preponderance of the evidence is against the claim so the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54-56. The Veteran's symptoms from his muscle group injury have not met the criteria for a higher rating at any time since the effective date of his award, so the Board may not stage his rating. Fenderson, 12 Vet. App. at 125-26. The Board has considered whether referral for an extraschedular rating is appropriate under the provisions of 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extraschedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). As described above, the manifestations of the Veteran's muscle group injury are contemplated by the schedular criteria set forth in Diagnostic Code 5313 which provides compensation for a moderately severe injury; no examiner has reported an exceptional disability picture with symptoms not represented in the rating schedule. In sum, there is no indication that the average industrial impairment from the disability would be in excess of that contemplated by the assigned rating. Accordingly, the Board has determined that referral of this case for extraschedular consideration is not in order. In this case, consideration of entitlement to TDIU is not required because in an August 2012 rating decision, the Veteran TDIU claim was granted, effective October 24, 2005. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). ORDER Service connection for a right knee disability is denied. Service connection for a left hip disability is denied. Service connection for a low back disability is denied. Service connection for an acquired psychiatric disorder is granted. Service connection for residuals of frostbite to the hands, face, and feet is denied. An initial disability evaluation in excess of 30 percent for a SFW injury to Muscle Group XIII is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs