Citation Nr: 1320857 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 04-28 412 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for infectious hepatitis. 2. Entitlement to service connection for a right shoulder disability. 3. Entitlement to an increased (compensable) rating for chip fracture of the left ankle, at the level of the os calcis and navicular bones. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran had active service from July 1968 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal of November 1984 and September 2003 rating actions by the Department of Veterans Affairs (VA) Regional Office (RO) located in Phoenix, Arizona. With respect to the Veteran's claim for service connection for infectious hepatitis, in an April 1984 rating decision, the RO denied the Veteran's initial claim for service connection for infectious hepatitis. The Veteran subsequently filed a notice of disagreement (NOD) in April 1984 and a statement of the case (SOC) was issued in June 1984. In October 1984, the Veteran filed a timely substantive appeal (VA Form 9), thereby perfecting his appeal as to the aforementioned service connection claim. Following the Veteran's October 1984 submission of a timely substantive appeal, there is no evidence of record showing that the Veteran then withdrew the substantive appeal for the claim for service connection for infectious hepatitis. See 38 C.F.R. §§ 20.202, 20.204(b) (a substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision). Thus, in this case, the Veteran's claim for service connection for infectious hepatitis was timely perfected in October 1984, and it has remained pending since that time. In December 2007, June 2010, and again in October 2011 the Board remanded this case for further development. Such has been completed to the extent possible and this matter is returned to the Board for further consideration. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran's hepatitis C was incurred or aggravated during service. 2. The preponderance of the evidence is against a finding that the Veteran's current right shoulder disability was incurred or aggravated during service. 3. The left ankle disability is not manifested by moderate limitation of motion or ankylosis, malunion or evidence of an astragalectomy. CONCLUSIONS OF LAW 1. The criteria for the establishment of service connection for hepatitis C are not met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2012). 2. The criteria for the establishment of service connection for a right shoulder disability are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 3. The criteria for an increased evaluation for a left ankle disability have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Codes (DC) 5270, 5271 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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 (2006). The record indicates that the Veteran was provided with adequate VCAA notice in July 2003 August 2005 and March 2006. Specifically, the RO notified the Veteran of information and evidence necessary to substantiate his service connection claims. He was notified of the information and evidence that VA would seek to provide and the information and evidence that he was expected to provide. The March 2006 notice specifically provided the notice regarding the degree of disability and effective dates pursuant to Dingess. While the notices were furnished after the issuance of the appealed rating decision for hepatitis, the appeal was subsequently readjudicated in a Supplemental Statement of the Case issued in March 2013. This course of corrective action fulfills VA's notice requirements. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The duty to notify has been met. While The Board further concludes that the duty to assist has also been met. The Veteran's service treatment records, VA treatment records, and private medical records have been obtained, in addition to various written statements by the Veteran himself. He was afforded appropriate VA examinations for claimed diabetes mellitus and peripheral neuropathy, and relevant opinions have been obtained from the examiners after a review of the claims folder. With respect to the VA's duty to assist with developing the Veteran's claims for service connection for infectious hepatitis and a right shoulder disability, and for an increased (compensable) rating for chip fracture of the left ankle, at the level of the os calcis and navicular bones, the Board remanded these claims for further development in December 2007. In the remand, the Board instructed the RO to schedule the Veteran for VA examinations to determine whether any current right shoulder disability and/or liver abnormalities were related to the Veteran's period of active service. The RO was also instructed to schedule the Veteran for an examination to determine the severity of his service-connected left ankle disability. Pursuant to the Board's December 2007 remand, the Phoenix VA Medical Center (VAMC) arranged for the Veteran to undergo the requested examinations. However, a note from the Phoenix VAMC, dated in April 2008, revealed that at that time, it was reported that the Veteran had cancelled his appointment via telephone call due to family problems. The RO requested a copy of the C & P examination appointment notification letter that was sent by the VAMC to the Veteran, and information as to when the notice was mailed out; however, that documentation was not in the claims file. In May 2009, the RO sent the Veteran a letter notifying him that the Phoenix VAMC would be scheduling him for an examination and that he would be notified of the date, time, and place of the examination. In a June 2009 letter to the Phoenix VAMC, the RO indicated that the Veteran had failed to report for his examination. The RO requested that the Phoenix VAMC send a copy of the C & P examination appointment notification letter that they sent to the Veteran. No such letter was subsequently associated with the claims file. In light of the above, the Board once again remanded this case in June 2010. The Board stated that the Veteran should be provided with an additional opportunity to appear for the requested examinations. Thus, pursuant to the remand, the Phoenix VAMC scheduled the Veteran for VA examinations in July 2010. The Veteran failed to report to the examinations. The RO requested a copy of the C & P examination appointment notification letter that was sent by the Phoenix VAMC to the Veteran. In a VA Form 21-0820, Report of General Information, dated in July 2011, the RO noted that they had contacted the Phoenix VAMC about the C & P examination appointment notification letter. The Phoenix VAMC responded that they were unable to locate the actual notification letter mailed to the Veteran regarding his July 2010 VA examinations for which he failed to report. However, the VAMC noted that the address they had on file at the time the Veteran was due to report for his examinations was the same address that the RO had on file. The VAMC also reported that their system reflected that the Veteran had showed up for his routine appointments which took place around the time of his scheduled VA examinations. However, those were local appointments, close to where the Veteran resided. According to the VAMC, the Veteran may have had a transportation issue. In addition, the Veteran had not contacted the VAMC regarding the exams. The VAMC reported that they had attempted to contact the Veteran by telephone. However, the telephone number they called was not in service. In an Informal Hearing Presentation, dated in August 2011, the Veteran's representative, the American Legion (AL) stated that the phone number that the Phoenix VAMC used to try and contact the Veteran was incorrect. The AL then supplied the Veteran's correct phone number. In light of the above, given that the C & P examination appointment notification letter that was sent by the Phoenix VAMC to the Veteran regarding the July 2010 VA examinations has not been associated with the claims file, and also given that an incorrect telephone number was used to try and contact the Veteran, the Board in an October 2011 remand once again determined that the Veteran should be provided with an additional opportunity to appear for the requested examinations. Thus it remanded the matter to schedule VA examinations again to address the appeal issues. Thereafter the record reflects that VA examinations were scheduled for November 2011 and December 2011, but then canceled due to his failure to report. Although an AMC letter from November 2011 advised the Veteran that he would be contacted by the VAMC regarding the scheduling of such examinations, no letter from the VAMC regarding these examinations is of record. However the examinations were rescheduled to take place in May 2012, and he again failed to report. In October 2012, he again was sent general notice of upcoming examinations by the AMC in a letter that advised him of the potentially unfavorable consequences of his failure to report. Computer printouts also show that in October 2012, the Veteran was contacted at the correct phone number provided by his representative and a message was left on his voicemail with a request to call the VA back in regards to the upcoming VA examination. A report of general information also from October 2012 indicates that the Veteran's representative was provided copies of the VA RO's notice and the telephone contact. Finally in February 2013, the Veteran failed to report to VA examinations scheduled for that month. A February 2012 letter from the VAMC's Chief of Health Benefits and Processing confirmed that the process of notifying Veterans telephonically and mailing a letter advising of the date of the appointment for the VA examination is standard protocol, and that such procedure was followed in the case of this Veteran. A review of his address in CAPRI from March 2013 reveals that it was the same address that the RO notices were sent to, and that his telephone number was also the number determined by the representative to be correct. Although the claims file does not contain copies of the actual notices regarding the scheduling of these examinations, the Veteran is presumed to have been provided proper notice. There is a presumption of regularity under which it is presumed that government officials "have properly discharged their official duties." United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926), Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (the VA need only mail notice to the last address of record for the presumption to attach). This presumption of regularity in the administrative process may be rebutted by "clear evidence to the contrary." Schoolman v. West, 12 Vet. App. 307, 311; Mindenhall, supra. The absence of copies of the VAMC examination schedule letters in the claims file does not preclude application of the presumption that the Veteran received proper notice. See Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004). Moreover, the Veteran has not alleged that he did not receive notice of the examinations, nor has he provided further notice to the VA of changes in his contact information. Thus the VA has substantially complied with the Board's remand requests. The Veteran has failed to cooperate with VA in this matter. The United States Court of Appeals for Veterans Claims (Court) has held that "[t]the duty to assist is not always a one-way street. If a veteran wishes help he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Failure to Report-Legal Criteria The regulations provide 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. On the other hand, when the examination was 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. Examples of "good cause" include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. 38 C.F.R. § 3.655(a),(b). A denial of a claim based on 38 C.F.R. § 3.655 for failure to report for a scheduled VA examination without good cause is a factual matter that is subject to a "clearly erroneous" standard of review. Engelke v. Gober, 10 Vet. App. 396, 399 (1997). In this regard the Board notes the Veteran has failed to report for VA examinations scheduled in conjunction with both his service connection claims and a claim for an increase. He has not provided evidence of good cause for his most recent failures to report. However the Veteran did initially report for an August 2003 VA examination scheduled in conjunction with his increased rating claim in 2003, and the RO is noted to have adjudicated his increased rating claim based on consideration of the available evidence rather than denying the increased rating claim strictly based on his failure to report to a VA examination. Thus the Board will likewise adjudicate the increased rating claim based on consideration of the available evidence. Likewise the service connection claims, being original claims will be adjudicated based on consideration of the available evidence of record. Service Connection--General laws and regulations Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires (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 evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Service connection may also be established on a presumptive basis for certain disabilities, including degenerative arthritis and diabetes, that were manifested following service. 38 C.F.R. §§ 3.307, 3.309. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). The Federal Circuit has held that "[l]ay 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, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. Layno v. Brown, 6 Vet. App. 465, 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Hepatitis-Factual Background and Analysis Service treatment records include pre-induction examination findings of May 1968 with normal abdomen, viscera, with the accompanying report of medical history showing no history of jaundice. He was noted to have tattoos. In April 1969 he was treated for malaria. In April 1970 he was admitted for cramps in the stomach, was unable to hold food down, with dark red urine, and was sent to the emergency room, where his symptoms included productive cough along with malaise, anorexia and dark red urine. Examination in April 1970 included findings of tender liver edge and liver hypertrophy. He was discharged from the hospital in June 1970 with a diagnosis of infectious hepatitis. His July 1970 separation examination the abdomen was normal, with no change in health since the last exam. The accompanying report of medical history was positive for a history of jaundice. In a November 1974 entrance examination for the Marine Corps, his abdomen and viscera was normal, although the accompanying report of history related a positive history of jaundice or hepatitis. Again he was noted to have tattoos, located on his left arm. No disqualifying defects or communicable diseases were noted. He did not complete basic training, and in January 1975 he underwent an administrative discharge for unsuitability for a defective attitude under Article 31, culminating in a general discharge. In a February 1984 VA examination, a history of infectious hepatitis treated in service was noted. He also was noted to have been treated for malaria in service. He reported that his last attack of hepatitis was in 1973, with jaundice, fever and clay colored stools. After treatment via a private physician, he was currently gaining weight and denied any problems with appetite or food. He did report weakness and fatigue from time to time. Examination revealed no jaundice present in the skin or eyes. His abdomen was soft, with the liver approximately 2 finger breadths below the right costal margin and it was nontender. Hematology studies were ordered and were negative. He was diagnosed with history of infectious hepatitis, asymptomatic today. Thereafter there is no evidence of any issues with hepatitis or other liver issues until December 2003, When he was seen wanting to establish VA treatment at the Globe clinic, with a history of hepatitis A noted in the review of systems, although no liver function tests were found. He was noted to have tattoos on both forearms. The same month he underwent a preventative health screen which included a risk assessment for hepatitis C, and was noted to have several risk factors for hepatitis C. This included multiple sex partners, having tattoos or repeated body piercings, unexplained liver disease and Vietnam era service. Lab tests for hepatitis C antibody were ordered. He was also screened for alcohol abuse with an audit score of 6. An April 2004 primary care note indicated that he was advised of the results of a liver function test (LFT), with results positive for hepatitis C. He was ordered to consult the gastrointestinal clinic for further follow-up. Thereafter VA treatment records from 2007 to 2013 reflect that chronic hepatitis not otherwise specified (NOS) was consistently reported in the problem list/medical history, with liver function tests repeatedly elevated in laboratory findings and also noted in the problem list. A September 2007 primary care note noted that he had chronic hepatitis not otherwise specified (NOS), with examination noting that he was heavily tattooed. He was assessed with hepatitis C with discussions centered about possible cirrhosis, or hepatoma. However he did not wish to pursue treatment. A March 2008 note revealed that the Veteran wished to speak to the medical provider regarding treatment for his liver, and he stated he had hepatitis B in service, as well as malaria. His screen for alcohol issues was positive. Another March 2008 note indicated that he was now willing to try and get treatment for hepatitis, with alcohol issues again noted, and an assessment of chronic hepatitis C given. The treatment records from 2009 continued to show a diagnosis of chronic hepatitis C, reported in July 2009, and he acknowledged having a chronic alcohol problem in May 2009. The records from 2010 continued to reflect chronic issues with hepatitis, with elevated liver function tests noted in March 2010, and a diagnosis of hepatitis C along with chronic problems with alcohol abuse noted in July 2010. He continued to have findings of elevated liver function tests reported in March 2011 and October 2011, and continued to carry a diagnosis of chronic hepatitis C. The VA records from 2012 and 2013 continued to document a chronic liver condition, with chronic hepatitis NOS continuing to be listed in the problem list, and elevated liver function tests repeatedly noted. He continued to have issues with elevated liver function tests and chronic alcohol abuse noted in these records including in August 2012, and March 2013 which continued to diagnose chronic hepatitis C. The records also document issues with chronic homelessness between 2010 and 2013. As pointed out in the prior Board remands for further development, a VA examination was deemed crucial to properly adjudicate this matter, and the RO has repeatedly attempted to schedule the Veteran for a current VA examination pursuant to the Board's prior remand directives. However, as discussed above, when addressing the VA's duty to notify and assist, the Veteran has repeatedly failed to report to examinations scheduled by the VAMC. Evidence from such examinations deemed crucial to the outcome of the appeal when such examinations were ordered by the RO pursuant to the multiple Board remands, could thus not be obtained. Based on a review of the evidence, the Board finds that service connection for hepatitis C is not warranted. While the Veteran has been diagnosed with hepatitis C, the evidence fails to show that it is related to his military service. While he was treated for infectious hepatitis during service, the preponderance of the evidence suggests that this was acute and transitory and by the time of the VA examination in 1984, he was described having a history of infectious hepatitis that was currently asymptomatic. In regards to the hepatitis C that was diagnosed years later in April 2004, there is no medical opinion linking this current hepatitis to the acute infectious hepatitis treated in service. The Veteran is noted to have acknowledged several risk factors to hepatitis C including multiple sex partners, having tattoos or repeated body piercings, unexplained liver disease and Vietnam era service. He is noted to have had tattoos noted both prior to entry as well as during service. However there is no opinion linking his current hepatitis C to any risk factors that may have been present in service, including the tattoos and Vietnam era service. While the Veteran is competent to report about his hepatitis symptoms and medical history, he is not shown to be a medical professional. Kahana, 24 Vet. App. at 438. Thus, his assertions are not competent evidence to address the complex medical question of whether the current hepatitis C and associated symptoms are related to service. See Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. His reports of a nexus have no probative value. See id. Again the VA's attempts to obtain an opinion from a competent medical professional regarding the nexus between his hepatitis C and service were thwarted by the Veteran's repeated failure to attend VA examinations scheduled for such purposes. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim. The benefit-of-the-doubt doctrine is therefore not applicable and the claim for service connection for a right shoulder disability must be denied. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57. Right Shoulder-Factual Background and Analysis Service treatment records include pre-induction examination findings of May 1968 with normal upper extremities, and the accompanying report of medical history negative for issues with trick shoulder, arthritis or rheumatism, or bone, joint or other deformity. In March 1969 he was seen for pain in the right shoulder causing restricted motion, on and off for several years secondary to a fall on the shoulder before entering service. He had no pain except on raising his elbow above shoulder level. The physical examination revealed full range of motion, no muscle weakness or spasm, no crepitus or evidence of effusion. He was sent for X-ray with an April 1969 X-ray report shown to be negative. No further complaints of right shoulder problems are shown in service and on separation examination of July 1970 his upper extremities were normal and the accompanying report of medical history was negative for issues with trick shoulder, arthritis or rheumatism, or bone, joint or other deformity. In a November 1974 entrance examination for the Marine Corps, his abdomen and viscera was normal, and the accompanying report of history was negative for issues with trick shoulder, arthritis or rheumatism, or bone, joint or other deformity. No disqualifying defects or communicable diseases were noted. Again he is noted to have underwent an administrative discharge for unsuitability for a defective attitude under Article 31, culminating in a general discharge in January 1975. In a February 1984 VA examination which addressed other medical findings, no right shoulder complaints or findings are reported. In November 1985 he underwent a VA examination for thoracic spine and left ankle problems, with physical examination limited to these issues. No findings or complaints regarding the left shoulder are reported. Likewise a February 1987 VA thoracic spine examination focused on this particular disability, with no pertinent findings or complaints regarding the right shoulder. In March 1987 the Veteran was treated for a back injury following a fall, with X-rays noted to show changes of bilateral osteoarthritis in the bilateral shoulder joints. The report of an August 2003 VA examination addressed right shoulder complaints, with a history of having been medically evaluated in April 1969 for non specific right shoulder discomfort, with X-rays reportedly normal. He presently complained of pain on performing range of motion movements above shoulder level. He also reported associated stiffness that was unremitting and an exacerbation of his discomfort when lying on his right side. He denied any specific complaints of a neurological nature affecting the upper extremities, and also denied swelling, heat, redness or instability. He also denied locking, fatigability, lack of endurance or incoordination throughout his activities of daily living, with the only discomforts showing to be shampooing, combing hair or brushing his teeth. Examination of the right shoulder revealed symmetrical muscle mass, no increased skin warmth on palpation and no induration, erythema or streaking. He had tenderness to palpation on the anterior aspect. Active and passive motion were 30 degrees extension and 170 degrees flexion and abduction, all limited by tenderness. The right arm's circumference was identical to the left arm. The assessment was right shoulder condition. His discomfort was reproducible on range of motion, which explained the limits on motion. His condition was secondary to degenerative arthritis disease and concurrent right shoulder impingement syndrome. Despite this, he was neurovascularly intact, with full motor strength and normal muscle mass. His condition was considered only mildly disabling. X-rays showed AC arthritis. No opinion was given as to whether this diagnosed condition was related in any way to service. Thereafter a December 2003 VA Globe Clinic note for establishing VA care noted chronic pain in multiple joints, including the right shoulder, with assessment of chronic right shoulder pain made. In March 2008 the Veteran was seen up for chronic health issues with a history of receiving medication from a private provider for pain management with joint pain involving the right shoulder and findings on examination of crepitus and diminished motion on overhead motion of this shoulder. July 2009 preventative treatment and clinic notes indicated that he reported current pain of a 9/10 level in multiple areas including the right shoulder. The pain was described as stabbing, pounding and shooting, and ranged from levels of 6 to 10 in severity. Again diminished overhead motion of the right shoulder was noted. The assessment included osteoarthritis, multiple sites. VA records from 2010 revealed continued problems with his right shoulder, with notes from March 2010 and April 2010 again noting complaints of pain in the right shoulder. A July 2010 record addressing mild muscle spasm and degenerative disc disease of the cervical spine noted decreased extension of both upper extremities. In September 2010 he described current pain at a level 7, with ranges in severity generally between 5 and 10 with the right shoulder among the multiple locations of pain, which was described as dull ache, burning, sharp and shooting. He was assessed with OA multiple sites. A mental health consult also in September 2010 noted joint pain in his shoulder among his complaints. VA records between 2011 and 2013 show continued complaints regarding the right shoulder. A March 2011 record documented his pain at a level of 8 and including the right shoulder, with ranges in severity generally between 5 and 10 with the right shoulder among the multiple locations of pain, which was described as dull ache, burning, sharp and shooting. Similar findings of pain were reported in October 2011 which reported the right shoulder pain at a 6 in intensity. The pain was noted to be worse on walking or laying in one spot, and also was worse in the morning or in cold weather. In August 2012 the Veteran was generally followed up for a recent hip fracture. He was noted to have joint pain in the right shoulder in the problem list. The rest of records from August 2012 primarily addressed problems and treatment for the hip fracture, and noted that the Veteran was homeless and sleeping in a tent which was hard on him orthopedically. One of the August 2012 records described the Veteran as reporting increased pain in his shoulders which he attributed to sleeping on the ground. In March 2013 the Veteran was seen for follow-up of chronic health issues, with joint pain in his right shoulder, and diffuse joint pain and limited motion reported on review of systems. Examination was significant for the right shoulder with an anterior appearing dislocation, and limited lateral and overhead motions. He was again assessed with OA multiple sites. X-ray of the right shoulder also in March 2013 yielded an impression, when compared to previous study of August 2013, showing resection of the distal end of the right clavicle with no evidence of acute fracture or dislocation seen. The clinical history from this X-ray was of apparent anterior dislocation said to have happened 6 months ago, with the Veteran also stating that he hurt it in service. As pointed out in the prior Board remands for further development, a VA examination was deemed crucial to properly adjudicate this matter, and the RO has repeatedly attempted to schedule the Veteran for a current VA examination pursuant to the Board's prior remand directives. However, as discussed above, when addressing the VA's duty to notify and assist, the Veteran has repeatedly failed to report to examinations scheduled by the VAMC. Evidence from such examinations deemed crucial to the outcome of the appeal when such examinations were ordered by the RO pursuant to the multiple Board remands, could thus not be obtained. Based on a review of the evidence, the Board finds that service connection for a right shoulder disability is not warranted. While the Veteran has been shown to have degenerative arthritis of the right shoulder noted as early as in March 1987 X-rays and further disability shown in an August 2013 X-ray showing resection of the distal end of the right clavicle, the evidence fails to show that any right shoulder disability presently manifested is related to his military service. The Veteran is competent to observe shoulder pain and relate his medical history. Kahana, 24 Vet. App. at 438; Layno, 6 Vet. App. at 470. However, the Board must weigh his reports against the additional evidence of record and overall plausibility. Caluza, 7 Vet. App. at 510-511, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden, 125 F. 3d at 1481 (Holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence."). Additionally, the service treatment records do confirm an instance of shoulder pain and limited motion treated in service in March 1969, with no X-ray evidence of any injury or pathology, and no evidence of a chronic right shoulder disorder shown on separation. However, the available evidence does not suggest a nexus between his current right shoulder disability and the in-service right shoulder problems. Notably, the Veteran specifically denied having any problems with a trick shoulder, or of other problems such as injury or arthritis, or other orthopedic problems in the July 1970 Report of Medical History. He is also noted to have not reported any chronic right shoulder problems when he underwent an entrance physical for the Marine Corps in November 1974 and had no disqualifying physical defects shown in this physical. The only assertion that the current right shoulder disability is related to service comes from the Veteran himself. While he is competent to report about his shoulder symptoms and medical history, he is not shown to be a medical professional. Kahana, 24 Vet. App. at 438. Thus, his assertions are not competent evidence to address the complex medical question of whether the current degenerative findings of the right shoulder are related to service. See Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. His reports of a nexus have no probative value. See id. Again the VA's attempts to obtain an opinion from a competent medical professional regarding the nexus between his current right shoulder disability and service were thwarted by the Veteran's repeated failure to attend VA examinations scheduled for such purposes. The competent medical evidence does not otherwise suggest that the Veteran's current right shoulder disability was incurred or aggravated during service or that degenerative arthritis was manifested within a year of separation. In short, a nexus has not been demonstrated. 38 C.F.R. §§ 3.303, 3.303(b), 3.307, 3.309. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim. The benefit-of-the-doubt doctrine is therefore not applicable and the claim for service connection for a right shoulder disability must be denied. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57. Increased Rating Right Ankle- General laws and Regulations and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2012). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate when the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). "The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim." Hart, 21 Vet. App. at 509. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2012). However, separate evaluations for separate and distinct symptomatology may be assigned where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Additionally, if two evaluations are potentially applicable, the higher evaluation is assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). It should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability, and incoordination. Service connection for a left ankle disability of chip fracture of the left ankle, at the level of the os calcis and navicular bones in an April 1984 rating, which assigned an initial noncompensable evaluation. The Veteran filed his claim for increase in May 2003. The ankle has continued to be rated as noncompensable under Diagnostic Code 5271 for limitation of ankle motion. Limitation of ankle motion is rated as 10 percent disabling when "moderate" in degree and 20 percent disabling when "marked" in degree. 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2012). Normal range of motion of the ankle is measured as 0-20 degrees of dorsiflexion and 0-45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II (2012). In every instance where the schedule does not provide a zero percent rating for a Diagnostic Code, a zero percent rating will be assigned if the criteria for a compensable rating are not met. See 38 C.F.R 4.31. Among the evidence pertinent to this claim is the report of an August 2003 VA examination that revealed current complaints of stiffness that can last up for an hour and immobility. He also reported constant, daily sharp pain with baseline intensity of 8/10 that worsened after prolonged ambulation of more than a half mile or prolonged standing for more than 6 hours duration. During such times he also experienced a subjective feeling of popping and actual swelling of the ankle. Aspirin relieved the symptoms, but not fully. He reported taking 12 per day. He denied any neurological manifestations of the left lower extremity. He also denied swelling, heat, redness or instability. He also denied locking, fatigability, lack of endurance or incoordination throughout his ordinary activities, including repetitive and normal tasks. He was noted to have been previously employed as a welder, but was unemployed for the past year secondary to his back and work conditions. On examination his left ankle had no evidence of swelling, induration, streaking, erythema or crepitations on active or passive motion. He had 20 degrees dorsiflexion and 45 degrees plantar flexion. There was no tenderness on these maneuvers, or on inversion or eversion. He had no ligament instability, and his arches were normal. Pulses were 2+ popliteal and 1+ posterior tibial. He had 5/5 motor strength in all flexors and extensors of the lower extremities. Deep tendon reflexes of the ankles were 1+, but 2+ elsewhere. He had normal light touch and sensations and his gait was normal. The assessment was left ankle condition, current discomfort was that degenerative arthritis disease with concurrent normal range of motion, and no ligament instability or motor strength deficits. Overally he was neurovascularly intact and had a good coordinated gait. This condition while uncomfortable, was not disabling. VA records documenting ongoing left ankle symptoms include an April 2004 record showing complaints of pain described as sharp, intermittent, at a level 5 out of 10. Among the multiple locations of such pain was the ankles. Thereafter, pain in multiple joints including his feet is mentioned in a July 2009 preventative treatment note which mentioned pain in the feet (but not specifically the ankles). This pain reported as a 9/10 level and described as stabbing, pounding and shooting, and ranged from levels of 6 to 10 in severity. No specific findings pertaining to the right ankle were reported in July 2009. Thereafter, VA records do not reflect specific left ankle complaints or findings until he was seen in Globe clinic in July 2010 for chronic left ankle pain and complaints of a recent onset of "electric" and "burning" pain of the ankle. He had gone to the ER the prior night and was referred to this clinic for a splint and cane for the left ankle. Review of systems was significant for numbness and tingling and pain of the left ankle. There was no weakness. Physical exam revealed full range of motion, no cyanosis or clubbing, and neurological findings grossly intact. The assessment was left ankle pain. A brace and cane provided. In September 2010 he reported current pain at a level 7, with ranges in severity generally between 5 and 10 with the left ankle among the multiple locations of pain, which was described as dull ache, burning, sharp and shooting. He was assessed with OA multiple sites. A November 2010 record described pain at a 10/10 level all the time, with cold weather increasing the pain. The pain was generalized all over, and was a dull ache, stinging, burning and sharp. Cold weather worsened it and medication was not helping. At the time he was living outside under a tarp. A March 2011 record documented his pain at a level of 8 and including the left ankle, with ranges in severity generally between 5 and 10 with the ankle among the multiple locations of pain, which was described as dull ache, burning, sharp and shooting. Similar findings of pain were reported in October 2011 which reported the ankle pain at a 6 in intensity. In August 2012 the Veteran was generally followed up for a recent hip fracture. He was noted to have joint pain involving the ankle and foot in the problem list. The rest of records from August 2012 primarily addressed problems and treatment for the left hip fracture, and noted that the Veteran was homeless and sleeping in a tent which was hard on him orthopedically. In March 2013 the Veteran was seen for follow-up of chronic health issues, with joint pain in his left ankle and foot, and diffuse joint pain and limited motion reported on review of systems. Examination was generally limited to shoulder findings, with no significant findings for the ankle reported. As pointed out in the prior Board remands for further development, a VA examination was deemed crucial to properly adjudicate this matter, and the RO has repeatedly attempted to schedule the Veteran for a current VA examination pursuant to the Board's prior remand directives. However, as discussed above, when addressing the VA's duty to notify and assist, the Veteran has repeatedly failed to report to examinations scheduled by the VAMC. Evidence from such examinations deemed crucial to the outcome of the appeal when such examinations were ordered by the RO pursuant to the multiple Board remands, could thus not be obtained. Based on a review of the evidence, the Board finds that a compensable rating is not warranted for the left ankle disorder. The evidence fails to show a moderate limitation of motion which would warrant a 10 percent rating under Diagnostic Code 5271. Additionally, he is not shown to have ankylosis of the substragular or tarsal joints, malunion of the Os calcis or astragalus with moderate deformity or evidence of an astragalectomy, thus a compensable rating is not shown under consideration of alternate Diagnostic Codes 5270, 5272-5274. The evidence also fails to show that there is painful motion or functional loss due to excess fatigability or incoordination pursuant to the Deluca criteria. Again the Veteran is noted to have failed to report for a VA examination that could have provided evidence regarding the current level of severity of the right ankle disorder. However the available evidence does not show that a 10 percent rating is warranted. Again the most recent VA examination, the August 2003 VA examination conducted to address his increased rating claim, showed a full range of motion of the ankle as well as normal motor strength, light touch and sensations and gait. While he had complaints of pain including his ankle in this examination report as well as in subsequent treatment records, such pain is not shown to result in a limitation of motion or functional loss that more closely resembles the criteria for a higher rating under the potentially applicable Diagnostic Codes. Even the records from July 2010 and November 2010 which suggested worsening pain, described as "electric" and "burning" do not reflect that functional loss resulted. Of note in the July 2010 record which recorded his complaints of severe electric and burning pain, the physical exam revealed full range of motion, no cyanosis or clubbing, and neurological findings grossly intact. Overall, the evidence reflects that a compensable rating is not warranted for the left ankle disorder. In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's left ankle disorder is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms"(which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The symptoms of his disability, including pain, limited motion and other symptoms, have been reflected by the schedular criteria. As discussed above, there are higher ratings available under the diagnostic code, but the Veteran's disability is not productive of such manifestations. As such, it cannot be said that the available schedular evaluation for the disability is inadequate. Further inquiry into extraschedular consideration is moot. See Thun, supra. For all the foregoing reasons, the Board finds that the claim for a higher rating for service-connected left ankle disorder must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the Veteran's claim for a higher rating, that doctrine is not helpful to the Veteran. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for infectious hepatitis is denied. Service connection for a right shoulder disability is denied. An increased (compensable) rating for chip fracture of the left ankle, at the level of the os calcis and navicular bones is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs