Citation Nr: 1320156 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 07-06 921 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a bilateral ankle disability, to include as secondary to service-connected bilateral pes planus with callosities. 2. Entitlement to service connection for a low back disability, to include as secondary to service-connected bilateral pes planus with callosities. 3. Entitlement to service connection for chronic depression/anxiety, to include as secondary to service-connected bilateral pes planus with callosities. 4. Entitlement to an initial rating in excess of 30 percent for service-connected pseudofolliculitis barbae. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from May 1977 to May 1981. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A Travel Board hearing was held on February 25, 2010, before the Board. A transcript of the hearing is of record. In April 2010, and again in July 2012, the case was remanded for additional development. The case has been returned to the Board and is ready for further review. The issue of entitlement to an initial rating in excess of 30 percent for service-connected pseudofolliculitis barbae is addressed in the REMAND portion of the decision below, and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A bilateral ankle disability did not have its onset in service; is not the result any in-service event, injury, or disease; and is not proximately due to or the result a service-connected disability. 2. A low back disability did not have its onset in service; is not the result any in-service event, injury, or disease; and is not proximately due to or the result a service-connected disability; arthritis of the spine did not manifest in service or within one year after separation from service. 3. Chronic depression/anxiety is aggravated by service-connected pes planus. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral ankle disability to include as secondary to service-connected disability have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2012). 2. The criteria for service connection for a low back disability to include as secondary to service-connected disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2012). 3. Resolving reasonable doubt in favor of the Veteran, the Veteran's depression/anxiety is aggravated by his service-connected pes planus with callosities. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.310(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA Because the Veteran's claim of entitlement to service connection for chronic depression/anxiety is being granted, there is no need to review whether VA's statutory duties to notify and assist are fully satisfied as any error would be non-prejudicial. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); see also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). As to the remaining issues decided below, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted November 9, 2000 (codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002)) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claims and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claims. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA must inform a claimant about the information and evidence not of record that is necessary to substantiate the claims, the information and evidence that VA will seek to provide, and the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements also apply to the evidence considered in determinations of the degree of disability and effective date of the disability once service connection has been established. VCAA notice must be provided before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claims for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided with a VCAA notification letter in August 2005, prior to the initial unfavorable AOJ decision issued in April 2006. In November 2011, he was provided with another letter that included information regarding secondary service connection. The Board observes that the pre-adjudicatory VCAA notice informed the Veteran of the type of evidence necessary to establish service connection, how VA would assist in developing the claims, and his and VA's obligations in providing evidence for consideration. The later letter informed the Veteran of the type of evidence necessary to establish secondary service connection, how VA would assist in developing the claims, and his and VA's obligations in providing evidence for consideration. It also provided notice with respect to disability ratings and effective dates. While the second letter was sent after the initial evaluation, the secondary service connection claim was readjudicated thereafter in subsequent supplemental statements of the case. Accordingly, the Board determines that the content requirements of VCAA notice have been met and the purpose of such notice, to promote proper development of the claims, has been satisfied. See Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). Based on the above, the Board finds that further VCAA notice is not necessary prior to the Board issuing a decision. VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the claims and providing him with VA examinations. The Veteran's service treatment records, VA treatment records, and the reports of VA examinations were reviewed by both the AOJ and the Board in connection with adjudication of the claims. The Veteran has not identified any additional records that VA needs to obtain to ensure an equitable adjudication of the claims. With regard to the VA examination, the Board notes that once VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board observes that the examiners reviewed the claims file, noting relevant documents in the file and post-service treatment evidence, documented the Veteran's subjective complaints and medical history, and examined the Veteran. The examiners then provided findings that were pertinent. There is nothing to suggest that the examiners' findings were incomplete or inconsistent with the other medical evidence contained in the claims file. In light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the appellant's claims without further development and additional efforts to assist or notify the appellant in accordance with VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant). Therefore, the Board determines that the appellant will not be prejudiced by the Board proceeding to the merits of the claims. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110. 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). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Competent medical evidence means 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 mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). 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). Service connection for certain chronic diseases, such as arthritis, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013) Where a chronic disease under 3.309(a) is shown as such in service or in the presumptive period 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. 38 C.F.R. § 3.303(b). In cases where a chronic disease is "shown as such in service", the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service connected disability compensation is sought." Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013). Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time. In other words, "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) Under section 3.310 of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to, or aggravated by, service-connected disease or injury. Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, 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); 38 C.F.R. § 3.310(b) (2012). Although the stated intent of the change was merely to implement the requirements of Allen v. Brown, 7 Vet. App. 439 (1995), 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. Consequently, because the claim for service connection in this case was received in 2005, before the effective date of the amended regulation, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. A Bilateral Ankle Disability The service treatment records show that at service entrance in 1977, no ankle disorder was noted on examination or by way of history. The Veteran was treated in service for a diagnosed slight right ankle sprain in March 1980. At separation in 1981, no ankle disorder was complained of or found on examination. After service, the record indicates that in 2000, the Veteran was treated by VA for a left ankle injury. VA records show that the Veteran was treated in November 2009 for right ankle and tibula/fibula pain after attempting to dock his boat and slipping and falling on the wet boat ramp. Right ankle fracture was diagnosed. He underwent an open reduction and internal fixation (ORIF). In a November 2011 lay statement from a friend of the Veteran it was stated that the Veteran had ankle pain that affected his ability to walk and activities of daily living. On examination in August 2012, status post bilateral ankle fracture was diagnosed. The examiner noted the history of the Veteran who indicated that he had a right ankle injury in service described as a slight right ankle sprain and no left ankle injury in service. The 2000 left ankle fracture was noted. The examiner opined that the bilateral ankle condition was not due to or the result of active duty. It was noted that the service treatment records did not show any serious injury to either ankle during active duty and that at separation in 1981 the examination was negative. The examiner stated that there was no documentation of chronic ankle problems from service until 2000 when a left ankle fracture was sustained, and then a right ankle fracture was found in 2009. The examiner stated that the objective evidence strongly indicates that any current right or left ankle disorder findings are due to residuals of the bilateral fractures sustained long after leaving service and are not related to any in-service event or injury. The examiner went on to state that the objective evidence failed to demonstrate that a right or left ankle disorder is due to and/or aggravated beyond the normal progression by the service connected pes planus. It was noted that there was no evidence to support this. The examiner noted that the Veteran has had well documented fractures of both ankles with residuals as noted. The examiner stated that in November 2009 prior to the right ankle fracture, the Veteran could walk up several flights of stairs and that this is not consistent with chronic right or left ankle problems from pes planus. Discussion The Board finds that the Veteran's claim for service connection for a bilateral ankle disability cannot be granted. The Board notes that the evidence shows that the Veteran was treated in service for right ankle complaints and that he has a current right ankle disorder. He was not treated in service for any left ankle complaints; however he has a current left ankle disorder diagnosis. Further he is service-connected for pes planus. However, the claims file does not contain competent evidence showing that the Veteran has a bilateral ankle disorder that was incurred in service or caused or aggravated by the Veteran's service-connected pes planus. As noted, there is no indication of an ankle complaint until many years after service, and there is no medical evidence associating the current disorders with service. In fact the only evidence in the file regarding the etiology of his bilateral ankle disorder is a negative opinion offered by a VA examiner in 2012. The examiner reviewed the claims file and examined the Veteran. The examiner found that the bilateral ankle disorder was not secondary to the service connected pes planus or aggravated by the disorder and is not related to service but rather due to fractures sustained many years after service. The opinions offered are supported by rationale and stand uncontradicted in the record. The claim based on the evidence in the file must be denied as a medical nexus has not been found. As noted above, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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). Here, the Veteran is not competent to make a medical determination regarding the etiology of his bilateral ankle disorder. See 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Therefore, although the statements of the Veteran in support of his claim have been given full consideration by the Board, they are not considered competent medical evidence and do not serve to establish a diagnosis or a medical nexus between the disorder and the Veteran's period of service or his service-connected pes planus. As to the statement offered by his friend, the Board notes that it reflects the Veteran's current complaints and does not offer competent medical evidence which establishes a diagnosis or medical nexus between the disorder and service or his pes planus. Further, to the extent that the Veteran's statements and the lay statement of his friend were offered in this case as evidence of "continuity of symptomatology" regarding the right ankle sprain sustained in service, the Board notes that "continuity of symptomatology" is "an alternative route for proving service connection for chronic diseases" which are specifically listed under section 3.309(a) of VA regulations. Walker, 708 F.3d at 1339. An ankle sprain is not one of the chronic conditions that is listed under that section, and therefore that alternative route to establishing service connection does not apply in this case to this claim. Nevertheless, when the condition for which service connection is claimed may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In this case, an ankle fracture might be the type of condition in some cases which, like the dislocated shoulder in Jandreau, may be capable of lay observation for the purpose of establishing a diagnosis. However, whether the current bilateral ankle disability in this case is the result of an ankle sprain in service in 1980 or the result of intercurrent and more recent ankle fractures in 2000 and 2009 is a medical matter requiring medical evidence for its support and resolution because it may require specialized testing, such as x-rays or MRIs, and knowledge about the nature of sprains versus fractures and what specific symptoms, if any, are likely to result from each. Therefore, medical evidence is required with regard to the nexus or connection of the current ankle disability in this case with either a sprain in service or with a post-service fracture because such a determination is not the kind of matter that lay evidence is competent to address. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In light of the above discussion, the Board must conclude that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a bilateral ankle disorder, and there is no doubt to be resolved. 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Low Back Disorder The Veteran's service treatment records show that he was treated during service for complaints of back pain. In November 1979, he reported having back pain after lifting a 50 caliber gun. Strain was diagnosed. In January 1980 he reported having back pain and upper respiratory infection was found; he was treated again later that month for back pain. In March 1980, he reported having back pain and questionable muscle strain was found. At separation in 1981, the Veteran denied having recurrent back pain and examination of the back was normal. After service, VA records show treatment for a complaint of back pain in July 2005. It was noted that he reported that he needed an X-ray for a claim. He reported injuring his back in service. Back pain was assessed, and X-rays showed degenerative disc disease of the fifth lumbar intervertebral space with no evidence of acute injury. In October 2005, he complained of low back pain and X-rays were noted to show degenerative disc disease of the L4-L5. In January 2009, the Veteran was treated by VA for mid-back pain of two day duration. He reported that he did not recall any back injury or trauma. Acute back pain was diagnosed. In September 2009, the Veteran reported having back pain for years. Low back pain with sciatica was found then as well as in November 2009. In a November 2009 statement, a friend of the Veteran noted that the Veteran has severe back pain. His current symptoms were described. The Veteran was examined in August 2012. Degenerative disc disease was diagnosed as was sciatica. The Veteran's history was documented. He stated that he had a back injury during service but could not recall the details. The examiner noted that the service records showed rare episodes of acute/transitory back conditions and that he has been found to have degenerative disc disease. The examiner opined that the back disorder was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner stated that the inservice back complaints were either acute and transitory, or in the case of the January 1980 note not even related to the spine, but rather to an acute respiratory infection. The examiner stated that this has no relationship to his spine or current diagnoses. It was noted that the separation physical was negative for a spine diagnosis and the Veteran denied recurrent back pain. The examiner also stated that the back condition was less likely than not proximately due to or permanently aggravated by the service-connected pes planus. It was noted that the MRI findings were non-specific and did not confirm any relationship to the pes planus, and the medical literature provided little evidence that pes planus is medically recognized as a significant proximate cause of degenerative arthritis. Discussion The Board finds that the Veteran's claim for service connection for a back disorder cannot be granted. The Board notes that the evidence shows that the Veteran was treated in service for back pain complaints and that he has a current back disorder. Further he is service-connected for pes planus. However, the claims file does not contain competent evidence showing that the Veteran has a low back disorder that was incurred in service or caused or aggravated by the Veteran's service-connected pes planus. Arthritis is present currently but was not shown in service or within the first post service year, and therefore, establishing service connection for the current degenerative condition of the spine requires a nexus between that condition and the back condition noted in service. Walker, 708 F.3d at 1338-39. Treatment for back complaints is not shown after service until many years after discharge, and no medical evidence in the file associates the current disorder with service. The only evidence in the file regarding the etiology of his back disorder is a negative opinion offered by a VA examiner in 2012. The examiner reviewed the claims file and examined the Veteran. The examiner found that the low back disorder was not secondary to the service connected pes planus or aggravated by the disorder and is not related to service. The opinions offered were rendered after examining the Veteran and reviewing the records. Rationale was provided and the opinions stand uncontradicted in the record. The claim based on the evidence in the file must be denied as a medical nexus has not been found. As noted above, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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). Here, the Veteran is not competent to make a medical determination regarding the etiology of his back disorder. See 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Arthritis and degenerative disc disease are diseases that are not capable of lay observation. Therefore, although the statements of the Veteran in support of his claim have been given full consideration by the Board, they are not considered competent evidence with regard either to a diagnosis or a nexus between the current spine disorder and a disease or injury in service or the service-connected pes planus. As to the statement offered by his friend, the Board notes that it reflects the Veteran's current complaints and does not offer competent evidence which establishes a diagnosis or nexus between the disorder and service or his pes planus. Further, to the extent that the Veteran's statements and the lay statement of his friend were offered in this case as evidence of "continuity of symptomatology" regarding the back strain sustained in service, the Board notes, as it noted with regard to the claim for service connection for the bilateral ankle condition above, that "continuity of symptomatology" is "an alternative route for proving service connection for chronic diseases" which are specifically listed under section 3.309(a) of VA regulations. Walker, 708 F.3d at 1339. Although arthritis is on the list of chronic conditions, arthritis of the spine was not shown or manifested in service, and back strain, which was shown in service, is not one of chronic conditions that is listed under section 3.309(a). Therefore, that alternative route to establishing service connection does not apply in this case. Rather, medical evidence of nexus between the back condition today and the back condition in service is required for service connection, and the only medical opinion of record in this case rules out such a connection. Moreover, as to the lay statement of the Veteran's friend, it is also not competent evidence with regard to nexus; however, it does not offer evidence of continuing symptoms since service but rather addresses the Veteran's current complaints. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In light of the above discussion, the Board must conclude that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a low back disorder, and there is no doubt to be resolved. 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Chronic Depression/Anxiety The Veteran seeks service connection for depression. His service treatment records show no complaint, diagnosis or treatment for any psychiatric complaints, and treatment after service is not shown until April 2004 when he was admitted at a VA facility for substance abuse. He reported feeling serious depression during his lifetime. He was seen in June 2006 for depression, and it was noted that he was taking fluoxetine. In October 2008, he underwent an outpatient psychiatric evaluation. He noted being treated with an anti-depressant for the past year. The pertinent finding was, history of depressive disorder NOS. Treatment and medication continued into 2009 and 2010. In March 2010, he was noted to have depressive disorder and found to be stable except for mild to moderate depressed mood secondary to his medical issues. The Veteran was examined by VA in August 2012, and a nexus opinion was obtained regarding the Veteran's claim for service connection for a psychiatric disorder to include as secondary to his service-connected pes planus. The examiner diagnosed depressive disorder. The August 2012 VA examiner stated that it is less likely than not that the Veteran's chronic depressive disorder is related to his military service. The examiner stated that the onset during military service could not be established. The examiner stated that the first significant period of depression identified by the Veteran was after the death of his mother after his service discharge, and that the Veteran indicated that he did not receive any mental health treatment in the service or for many years following service. The examiner stated that the Veteran's depression appeared to be related in part of ongoing physical pain and limitations but is also triggered by life stress. The examiner reviewed the VA records and stated that it is at least as likely as not that the Veteran's chronic depressive disorder is aggravated by the service connected bilateral pes planus with callosities. The examiner stated that the ongoing pain in his feet/ankles and his related difficulty with walking for any length of time appears to be one of the several stressors which aggravates the Veteran's depressive disorder. The examiner stated that it is well-established that depression is reactive to life stressors including physical stressors. The examiner stated that further, the Veteran consistently reports that he feels more depressed when pain from his feet/legs increase. The examiner stated that testing showed a correlation between his mood symptoms and his somatic concerns. The examiner noted that the extent to which the depression is aggravated by pes planus versus the other life stressors could not be established by her without resort to speculation, due in part to the mild level of impairment and that he is controlled well by his medication. The evidence does not support a finding that service connection on a direct basis is warranted. There is no treatment in service and until many years thereafter and the Veteran has not contended that he was treated in service for any psychiatric complaints which continued thereafter. Further the August 2012 VA examiner stated that it is less likely than not that the Veteran's chronic depressive disorder is related to his military service. The examiner stated that the onset during military service could not be established. The examiner stated that the first significant period of depression identified by the Veteran was after the death of his mother after his service discharge, and that the Veteran indicated that he did not receive any mental health treatment in the service or for many years following service. This was based on examination of the Veteran, and a review of the VA treatment records and is supported by rationale. Further, it stands uncontradicted in the record. However, here the August 2012 VA examiner has also reported that the psychiatric disorder is aggravated, at least in part by the Veteran's service-connected pes planus. The Veteran was examined, medical records were reviewed and rationale was provided. Additionally the opinion stands uncontradicted in the record. Thus it has much probative value. Although the examiner could not indicate the extent of aggravation, there is a finding of aggravation that is supported by rationale and is sufficient to support a finding of secondary service connection. Therefore, resolving all benefit of the doubt in favor of the Veteran, the Board concludes that the Veteran's chronic depression/anxiety is aggravated by his service-connected pes planus. Accordingly, secondary service connection is warranted. 38 C.F.R. § 3.310; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a bilateral ankle disability, to include as secondary to service-connected bilateral pes planus with callosities is denied. Service connection for a low back disability to include as secondary to service-connected bilateral pes planus with callosities is denied. Service connection for chronic depression/anxiety to include as secondary to service-connected bilateral pes planus with callosities is granted. REMAND Reasons for Remand: To conduct a current disability evaluation examination. The Veteran seeks a higher initial evaluation for his service connected pseudofolliculitis barbae currently evaluated as 30 percent disabling. He was last examined for disability evaluation in August 2012. In May 2013, the Veteran's representative stated that the Veteran "strongly asserts" that his (symptoms) have "severely increased" since his last VA examination. Thus, the Board finds that the record, as it currently stands, may not adequately reveal the present state of the Veteran's skin disorder since it is contended that it has severely worsened since his last examination. Therefore, remand is required to secure an examination to ascertain the current level of severity of this disability. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted); VAOPGCPREC 11-95 (1995) (VA is obliged to afford a Veteran a contemporaneous examination where there is an indication of an increase in the severity of the disability.) Accordingly, the case is REMANDED for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Schedule the Veteran for a VA examination of his service-connected pseudofolliculitis barbae. The claims file and any pertinent evidence in Virtual VA must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be made available to the examiner for review. Color photographs must be taken. A complete rationale for all expressed opinions should be provided. The examiner should provide the following information: The examiner must provide specific findings as to each of the following (assuming the skin affected by pseudofolliculitis barbae is the "scar" for purposes of answering the below listed questions): a) Is the scar is five or more inches in length? b) At its widest part, is the scar is at least one-quarter inch? c) Is the surface contour of the scar is elevated or depressed on palpation? d) Is the scar is adherent to underlying tissue? e) Is the skin hypo- or hyper-pigmented in an area exceeding six square inches? f) Is the skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches? g) Is underlying soft tissue missing in an area exceeding six square inches? h) Is the skin indurated and inflexible in an area exceeding six square inches? i) Does the scar cover an area or areas of 144 square inches or greater? The examiner must provide an accurate and fully descriptive assessment of the Veteran's pseudofolliculitis barbae. For any scar found, the examiner must identify if it is disfiguring; and if there is any associated muscle or nerve injury. The examiner must also indicate the percentage of the entire body or exposed areas that are affected by pseudofolliculitis barbae, and the percentage of the entire body or exposed areas that are affected by pseudofolliculitis barbae. Indicate whether systemic therapy is required to treat pseudofolliculitis barbae, and, if so, the frequency and length of that therapy. All symptoms related to the pseudofolliculitis barbae should be set forth, including any pain caused thereby. 3. The RO must notify the Veteran that it is his responsibility to report for the examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. After the development requested has been completed, the RO must review the examination report to ensure that it is in complete compliance with the directives of this Remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Veteran's claims must be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs