Citation Nr: 1321979 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 10-06 979 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hypertension. 2. Entitlement to service connection for a disability manifested by numbness of the left foot, as secondary to the service-connected bilateral plantar fasciitis/pes planus. 3. Entitlement to an increased rating for patella tendonitis of the right knee, currently rated as 10 percent disabling. 4. Entitlement to an increased rating for patella tendonitis of the left knee, currently rated as 10 percent disabling 5. Entitlement to increased rating for scars on the left foot, currently rated as 10 percent disabling. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran had active service from September 1991 to May 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal of November 2008, January 2009, and August 2010 rating actions by the Department of Veterans Affairs (VA) Regional Office (RO) located in Columbia, South Carolina. Although in the February 2010 statement of the case (SOC), the RO determined that new and material evidence had been submitted and reopened the Veteran's claim for service connection for hypertension and denied the underlying claim, these actions do not bind the Board. The question of whether new and material evidence has been received is one that must be addressed by the Board, notwithstanding a decision favorable to the appellant that may have been rendered by the RO. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) [before considering a previously adjudicated claim, the Board must determine that new and material evidence was presented or secured for the claim, making RO determination in that regard irrelevant]; see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) [the Board has a jurisdictional responsibility to consider whether it was proper for the RO to reopen a previously denied claim]. The proper issue on appeal, therefore, is whether new and material evidence has been received which is sufficient to reopen the previously-denied service connection claim for hypertension. The issues of entitlement to service connection for a left ankle disability and for arthritis of the left foot, both as secondary to the service-connected bilateral plantar fasciitis/pes planus, were originally developed for appellate review. However, in a September 2011 rating action, the RO granted service connection for degenerative joint disease of the left ankle, to include swelling and pain. In that same rating action, the RO also granted service connection for degenerative joint disease of the left foot, to include the subtalar joint. Therefore, these issues are no longer before the Board. In May 2012, while sitting at the RO, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the Veteran's claims folder. The claims for increased ratings for the service-connected right knee disability, left knee disability, and scars on the left foot, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's original claim of service connection for hypertension was denied by an unappealed rating decision in December 2005, of which the Veteran was advised in December 2005. 2. In July 2008, the Veteran filed an application to reopen the claim for service connection for hypertension. 3. The evidence received since the unappealed December 2005 decision, when considered by itself or in the context of the entire record, does not relate to a fact unestablished by the previously available record that is necessary to substantiate the claim of service connection for hypertension. 4. There is no competent evidence of record showing a current diagnosis of a disability manifested by numbness of the left foot. CONCLUSIONS OF LAW 1. The unappealed December 2005 rating decision, which denied service connection for hypertension, is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.3160(d), 20.1103 (2012). 2. Evidence submitted to reopen the claim of entitlement to service connection for hypertension is not new and material, and the claim is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156(a) (2012). 3. Entitlement to service connection for a disability manifested by numbness of the left foot, as secondary to the service-connected bilateral plantar fasciitis/pes planus, is not warranted. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Introductory Matters In this decision, the Board will discuss the relevant law it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction; the Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 ("VCAA") describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA has met these duties with regard to the claim adjudicated on the merits in this decision. There is no issue as to providing an appropriate application form or completeness of the application. Written notice provided in August 2008 and December 2008 fulfills the provisions of 38 U.S.C.A. § 5103(a). The Veteran received notice of the evidence needed to substantiate his claims, the avenues by which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005); see also Mayfield v. Nicholson, 19 Vet. App. 103, 109-12 (2005) (Mayfield I) rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In addition, the August and December 2008 letters also informed the Veteran about how VA determines effective dates and disability ratings, as required by Dingess. In regard to Pelegrini, written notice was provided in August 2008, prior to the appealed rating decision, along with the notice provided in December 2008. The case was readjudicated in March 2010 and September 2011 supplemental statements of the case (SSOC's) and the Veteran has not been prejudiced thereby. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). In August 2008 the Veteran was informed of the definition of "new and material evidence" and was specifically advised that his claim was previously denied because the evidence did not show that hypertension occurred in or was caused by his period of active service. The Veteran was also notified that in regard to his contention that his hypertension was secondary to his service-connected depressive disorder, he had to submit evidence showing a connection between his hypertension and his service-connected depressive disorder. Kent v. Nicholson, 20 Vet. App. 1 (2006). The duty to assist provisions of the VCAA has also been met. The claims file contains service treatment records, post service treatment records, hearing testimony , VA examination reports, dated in February 2011, and an addendum to one of the February 2011 VA examination reports, dated in June 2011. These examinations were thorough in nature and adequate for the purposes of deciding the claims on appeal. The Veteran has had the essential benefit of a successfully reopened claim because he has had a medical examination. With respect to the new and material petition, the claims file was unavailable for the examiner to review in February 2011. In June 2011, an addendum was provided and a different examiner was able to review the Veteran's claims file. Following a review of the claims file, the examiner opined that it was less likely as not that the Veteran's current diagnosis of hypertension was related to elevated blood pressure readings in service. The examiner noted that the Veteran's service treatment records were negative for any diagnosis of hypertension and that the first evidence of record of a diagnosis of hypertension was in June 2005. In regard to the claim for a disability manifested by numbness of the left foot, in the February 2011 VA examination report, while the examiner recognized that the Veteran had an approximately 2-cm wide band of numbness extending just medial to a scar, he still could not link such numbness to any underlying disability, including any definite neurologic abnormality. These VA opinions are factually supported, medically competent and fully explained. VA has no further duty to provide an examination or medical opinion. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (c ) (4) (2012). See also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran testified at a videoconference hearing before the undersigned VLJ in May 2012. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. The undersigned VLJ discussed the issues with the Veteran at the hearing and sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. Although the VLJ characterized the Veteran's new and material claim as a claim for service connection for hypertension (given that the RO had reopened the claim and denied it on the merits), the Board finds that such error, and any other error in notice provided during the Veteran's hearing, constitutes harmless error. As noted above, the fact that the Veteran was afforded a VA examination constitutes a de facto reopening of the claim. See 38 C.F.R. § 20.1102. Neither the Veteran nor his representative has identified any prejudice in the conduct of the Board's May 2012 hearing or contended that the Veteran does not fully understand the issues or the evidence that is required to substantiate his claims. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claims and to respond to VA notices. Further, the Board finds that the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims. For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide this appeal. The applicable duties to notify and assist have been satisfied. There is sufficient evidence on file in order to decide this appeal and the Veteran has been given ample opportunity to present evidence and argument in support of his claims. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); see also Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also ATD Corp. v. Lydall, Inc. 159 F.3d 534, 549 (Fed. Cir. 1998). Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of these issues has been obtained and the case is ready for appellate review. See 38 C.F.R. § 3.103 (2012). Pertinent Laws and Regulations Service connection may be established for disability resulting from personal injury or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A three-element test must be satisfied in order to establish entitlement to service connection. Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))). Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases-namely those listed in 38 C.F.R. § 3.309(a)-benefit from a somewhat more relaxed evidentiary standard. See Walker, supra (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases."). When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). However, not all diseases that may be considered "chronic" from a medical standpoint qualify for the relaxed evidentiary standard under section 3.303(b). Rather, the Federal Circuit held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Walker, supra. Thus, if the claimant does not have one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and the "nexus" requirement of the three-element test must be met. Id. Because the Veteran has been diagnosed with hypertension, and hypertension is defined as a chronic disease in section 3.309(a), the provisions of subsection 3.303(b) for chronic disabilities apply, and the claim may be supported by evidence of a continuity of symptomatology after service. The Veteran's hypertension is also eligible for presumptive service connection. Specifically, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection for cardiovascular-renal disease, to include hypertension, 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 from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307; 3.309(a). However, this presumption will be rebutted if there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). Service connection may also be granted on a secondary basis for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310(a). In addition, secondary service connection may be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(c) (2012); see Allen v. Brown, 8 Vet. App. 374 (1995). 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). Lay persons can also provide an eye-witness account of an individual's visible symptoms. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). The New and Material Evidence Application The Veteran's original claim of entitlement to service connection for hypertension was denied by the RO in a December 2005 rating action. The RO found that the Veteran's service treatment records were negative for a diagnosis of hypertension. In addition, although the evidence of record showed that the Veteran had a current diagnosis of hypertension, it was not shown that the Veteran's hypertension occurred in or was caused by his period of active service. The Veteran was provided notice of the decision and his appellate rights. He did not file a notice of disagreement. Therefore, the December 2005 rating action became final based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103 (2012). A claim will be reopened and its merits reviewed if new and material evidence is presented. 38 U.S.C.A. § 5108. Because the December 2005 rating action was the last final disallowance, the Board must review all of the evidence submitted since that action to determine whether the Veteran's claim for service connection should be reopened and re-adjudicated on a de novo basis. Evans v. Brown, 9 Vet. App. 273 (1996). If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Board shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108 (West 2002). For claims filed on or after August 29, 2001, such as this claim, new evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence of record at the time of the February 2004 rating action consisted of the Veteran's service treatment records and VA Medical Center (VAMC) outpatient treatment records, dated from June to November 2005. The Veteran's service treatment records are negative for a diagnosis of hypertension. The records include normal and high blood pressure readings. In March 2000, the Veteran's blood pressure reading was 136/83. In May 2003, his blood pressure reading was 140/94. VAMC outpatient treatment records, dated from June to November 2005, show that in June 2004, the Veteran was evaluated as a new patient. He stated that he had been on treatment for hypertension since 2003. Recently, he had been off blood pressure medication for several months and felt tired and dizzy. According to the Veteran, he had these symptoms prior to being diagnosed with hypertension. Upon physical examination, his blood pressure was 150/76. The diagnosis was hypertension. Evidence received subsequent to the unappealed December 2005 decision consists of the Veteran's Virtual VA folder which includes VAMC outpatient treatment records, dated from October 2007 to April 2013, a VA Form 21-4138, Statement in Support of Claim, received in July 2008, a statement from the Veteran, dated in August 2008, a VA examination report, dated in February 2011, an addendum to the February 2011 VA examination report, dated in June 2011, and hearing testimony. The VAMC outpatient treatment records, dated from October 2007 to April 2013, show intermittent treatment for the Veteran's hypertension. In a May 2008 rating action, the RO granted service connection for a depressive disorder. The RO stated that the Veteran had been treated for a generalized anxiety disorder in the military. At that time, he was having marital problems. According to the Veteran, he was removed from the Army when he discovered his wife was having an extramarital affair. In a May 2008 VA examination, the examiner diagnosed the Veteran with a depressive disorder and linked the disorder to the Veteran's in-service anxiety. In July 2008, the Veteran stated that he developed high blood pressure secondary to his service-connected depression. According to the Veteran, he had been discharged from the Army which caused him to develop anxiety and depression, which in turn caused him to develop high blood pressure/hypertension. In August 2008, the Veteran stated that in February 2003, while he was in the military, his blood pressure increased and continued through May 2003 due to mental stress that was forced upon him and his family by the Army. He noted that he was given medication for his high blood pressure in May 2003. According to the Veteran, a few days later, he was wrongfully discharged from the Army. In February 2011, the Veteran underwent a VA examination. The examiner stated that he did not have the Veteran's claims file to review, and he was unable to make an opinion regarding whether the Veteran's hypertension was related to his period of active service without resorting to mere speculation. In June 2011, an addendum was provided to the February 2011 VA examination report. The examiner, who was a different examiner than the February 2011 VA examiner, stated that she had reviewed the Veteran's claims file. She indicated that the Veteran's service treatment records were void of a diagnosis of hypertension. No treatment for hypertension was rendered while in service. She noted that there were various examples of isolated elevated systolic or diastolic readings which were documented during examinations for pain and upper respiratory conditions while the Veteran was in the military. The examiner noted that according to the Veteran, he first received treatment for hypertension in 2003. However, the examiner reported that a diagnosis and initiation of treatment was not located in the claims file until June 2005. No medical treatment records were seen for the period of time between 2003 and 2005. Based on the above, the examiner found it was less likely as not that the Veteran's current diagnosis of hypertension was related to elevated blood pressure readings in service. In May 2012 the Veteran before the undersigned VLJ that he was first treated for hypertension in February 2003, when he was still in the military. However, upon further questioning, he noted that he was treated for high blood pressure during service, but he was not sure of the exact time when he was actually diagnosed with hypertension. He stated that he continued to experience high blood pressure after his discharge. When asked if any doctor had ever commented to him that his hypertension was directly related to service, he responded "not that I can recall." The Board has considered the medical evidence added to the claims file since the December 2005 rating decision. The VAMC outpatient treatment records, dated from October 2007 to April 2013, and the February 2011 VA examination report, and addendum, dated in June 2011, are new, but are not material to the claim. The new medical evidence does not show a link between any currently diagnosed hypertension, and the Veteran's period of active service. The VAMC outpatient treatment records merely confirm that the Veteran continues to receive treatment for his diagnosed hypertension. Evidence of the Veteran's current condition is not generally relevant to the issue of service connection, absent some competent linkage to military service. Morton v. Principi, 3 Vet. App. 508, 509 (1992); Mingo v. Derwinski, 2 Vet. App. 51, 53 (1992). At the time of the December 2005 rating action, the evidence of record showed that the Veteran had hypertension. The pertinent question was whether the Veteran's hypertension was related to his period of active service. The VAMC outpatient treatment records do not address this pertinent question. In the February 2011 VA examination report, the examiner was unable to address the pertinent nexus question because he did not have the claims file to review. In the June 2011 addendum, following a review of the claims file, a different examiner opined that it was less likely as not that the Veteran's current diagnosis of hypertension was related to elevated blood pressure readings in service. The examiner noted that the Veteran's service treatment records were negative for any diagnosis of hypertension and that the first evidence of record of a diagnosis of hypertension was in June 2005. Thus, although this opinion addresses the nexus question, the opinion opposes, rather than supports the Veteran's contention of a nexus between his hypertension and his period of active service. Therefore, it is not new and material. The Board has considered the Veteran's statements. He once again maintains that he developed hypertension during service and continued to experience hypertension after his discharge. His contention is cumulative of his pervious contention at the time of his prior claim; and in any event is not competent because he is not medically trained to render such an opinion. He also maintains that he developed hypertension as secondary to his service-connected depression, which is a new theory. He reports that he was wrongfully discharged from the Army which caused him to develop anxiety and depression, which in turn caused him to develop high blood pressure/hypertension. However, it appears that the Veteran is referring to the fact that he initially received an Under Honorable Conditions discharge which was "In Lieu of Court Martial." In this circumstance, applicable Army Regulation mandates that a military accused such as the Veteran both receive the benefit of legal counsel and acknowledge guilt for at least a lesser included offense as stipulated in the Manual for Courts-Martial. (See Army Regulation 27-10). There is no evidence that the Veteran was unaware of his actions, or that his discharge was "unconstitutional" as he has alleged. In all events, his discharge was subsequently upgraded to an Honorable discharge. In a February 2005 letter from the Department of the Army, it was noted that the Army Discharge Review Board concluded that the characterization of the Veteran's discharge had been changed to Honorable. With respect to the Veteran's contention that he developed hypertension during service and continued to experience it after his discharge, or in the alternative, that his hypertension was caused and/or aggravated by his service-connected depression, he is not competent to give such opinions. Lay statements may, in certain circumstances, be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, the Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). The Veteran's Military Occupational Specialty (MOS) was Medical Specialist. However, there is no evidence to suggest that the Veteran has specialized knowledge and training in the area of the cardiology. His training has been primarily in ophthalmology. As indicated in Diagnostic Code 7101, hypertension involves the cardiovascular system and is diagnosed based upon blood pressure testing. It is not a disability capable of lay observation, such as varicose veins or tinnitus. Rather, it is a disease involving internal organs. For that reason, the Veteran's lay opinion, regardless of his subjective belief, does not constitute competent evidence and is of no probative value. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The Veteran is not otherwise competent to have observed hypertension since service, as hypertension is a cardiovascular disease process not capable of lay observation. Such a determination is the province of trained medical professionals. The thresholds for blood pressure are required for a diagnosis of hypertension, as specified in 38 C.F.R. § 4.104, Diagnostic Code 7101. See 38 C.F.R. § 3.159(a)(2). The Veteran himself is not sure of when exactly he was diagnosed with hypertension. In the May 2012 videoconference hearing, he noted that he was treated for high blood pressure during service, but he was not sure of the exact time when he was actually diagnosed with hypertension. Ultimately, although the Veteran has some medical expertise, because he does not have medical expertise in cardiology, his statements are not competent evidence on causation or the pertinent nexus question. In addition, he has not submitted any competent evidence to support his statements. By itself or when considered with the evidence previously of record, none of the recently submitted evidence relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for hypertension and does not raise a reasonable possibility of substantiating the claim. Therefore, new and material evidence has not been received to reopen the claim for service connection for hypertension. The requirements to reopen this claim have not been met, and the appeal must be denied. As new and material evidence to reopen the previously denied claim has not been received, the benefit-of-the-doubt doctrine is inapplicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Service Connection for a Disability Manifested by Numbness of the Left Foot In a December 2005 rating action, the RO granted service connection for bilateral plantar fasciitis and bilateral pes planus. VAMC treatment records show that in May 2007, the Veteran underwent surgical correction of a painful and progressive flat foot deformity of the left foot. He had tried conservative treatment without relief. The Veteran's pre-operative and post-operative diagnosis was severe flexible and progressive flat foot deformity with ankle equinus deformity of the left foot and ankle. He underwent a calcaneal osteotomy of the left heel, and tendo-Achilles lengthening of the left Achilles and Lapidus arthrodesis. In a May 2008 rating action, the RO granted service connection for scars on the left foot, as secondary to the service-connected bilateral plantar fasciitis/pes planus. VAMC outpatient treatment records show that in May 2008, the Veteran was treated for pain in the left foot. He stated that since his surgery, he had experienced chronic pain in his left foot. The Veteran was diagnosed with persistent left foot and ankle pain status post podiatric surgery in May 2007. In June 2008, he was diagnosed as status post left flat foot correction, with continued lateral hindfoot pain and painful first tarsometatarsal nonunion. In July 2008, the Veteran stated that he had numbness of the left foot that was caused by his left foot surgery for his service-connected plantar fasciitis. In February 2011, the Veteran underwent a VA examination. The examiner stated that he had reviewed the claims file. In May 2007, the Veteran underwent surgery for his left foot. The examiner noted that according to the Veteran, after the surgery, the pain in his left foot increased and involved the dorsum of the foot, as well as the plantar aspect. The Veteran also reported that he developed an area of numbness in the left foot. Upon physical examination of the left foot, there was tenderness to palpation over the dorsal, medial aspect of the left foot. There was also a well-healed surgical scar which measured 4 cm x 1 cm at the medial, dorsal aspect of the left foot. The scar was tender to palpation. There was an approximately 2-cm wide band of numbness extending just medial to the scar. There were no other abnormalities in that area. The skin was intact. Proprioception and vibratory sensation were intact throughout the left foot. The diagnosis was left foot scar. The examiner stated that he was aware that the diagnosis of scar of the left foot was not a neurologic diagnosis. However, the examiner could find no definite evidence for a neurologic abnormality with a clear etiology. The examiner stated that he could not account for the numbness lateral to the scar. A surgical injury to the distal peripheral nerve in the foot would be expected to resolve over time. The examiner indicated that he could find no clear explanation for the focal area of numbness. He also noted that he could not link the numbness to any definite neurologic abnormality. Thus, it was less likely as not that the Veteran's foot numbness was the result of the surgery for his service-connected pes planus. In a September 2011 rating action, the RO granted service connection for degenerative joint disease of the left foot, to include the subtalar joint. Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). There is no competent evidence showing a current diagnosis of a disability manifested by numbness of the left foot. In the February 2011 VA examination, while the examiner recognized that the Veteran had an approximately 2-cm wide band of numbness extending just medial to a scar, he could not link such numbness to any underlying disability, including any definite neurologic abnormality. There was no clear etiology for the numbness. Ultimately, he provided a diagnosis of a scar of the left foot, which was not a neurologic diagnosis. This opinion opposes, rather than supports, the Veteran's claim. The only evidence of record supporting the Veteran's claim is his own lay opinion that he currently has a disability manifested by numbness of the left foot that is secondary to his service-connected bilateral plantar fasciitis/pes planus. The Veteran is competent to describe that after his surgery on his left foot for his service-connected plantar/fasciitis/pes planus, he developed numbness in his left foot, and the Board accepts his statements as credible. Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007). He is competent to give evidence about observable symptoms such as numbness. See Layno, 6 Vet. App. at 465; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."). However, a symptom, such as numbness alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). In this case, no underlying disability manifested by numbness has been diagnosed. The Veteran is not competent to give an opinion as to whether he has an underlying disability manifested by numbness of the left foot that is related to his service-connected plantar fasciitis/pes planus, including the surgery for his left foot plantar fasciitis/pes planus. These issues involve highly complex medical questions concerning an internal physical process. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). Determining the etiology of complex medical conditions requires medical training and would not be subject to lay observation, as contrasted with the situations contemplated by Jandreau and Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of varicose veins). Here, the Veteran's lay opinion that he has an underlying disability manifested by numbness of the left foot that is related to his service-connected plantar fasciitis/pes planus, including the surgery for his left foot plantar fasciitis/pes planus, is not competent evidence and cannot be considered as evidence favorable to his claim. There is no competent evidence of record of a disability manifested by numbness of the left foot, the Board finds that there is a preponderance of evidence against the Veteran's claim and that the claim must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt. However, as there is a preponderance of evidence against the Veteran's claim, the doctrine is not for application. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence not having been received, the petition to reopen the claim for service connection for hypertension is denied. Entitlement to service connection for a disability manifested by numbness of the left foot, as secondary to the service-connected bilateral plantar fasciitis/pes planus, is denied. REMAND The Veteran was last afforded a VA examination which addressed his service-connected bilateral knee disabilities in February 2011, over two years ago. In the May 2012 videoconference hearing, he testified that his bilateral knee disabilities had worsened since his last VA examination. He stated that he had chronic pain in his knees, and that they tended to lock up and buckle at times. His knees also swelled during the day. According to the Veteran, he had to wear braces on his knees. He reported that he worked at the Department of the Army and that he had to miss time from work due to a combination of problems from his knees and feet. In light of the above and in consideration of the Veteran's contentions, including the worsening of his bilateral knee symptomatology, the Board finds that a new, more contemporaneous examination is needed prior to a final adjudication of the Veteran's current claims. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). In regard to the Veteran's service-connected scars on the left foot, the Veteran is receiving a 10 percent disability rating under Diagnostic Code 7804, effective from October 31, 2007, for his scars on the left foot. The criteria for rating scars were revised during the pendency of this appeal, effective October 23, 2008. The revised criteria only apply to claims filed on or after October 23, 2008, and to those claims where a request for consideration of the new criteria has been received. See 73 Fed. Reg. 54708 (Sept. 23, 2008). The Veteran in this case initiated the claim at issue prior to October 23, 2008. However, in the May 2012 videoconference hearing, the Veteran's representative essentially requested consideration of the Veteran's claim under the revised criteria. He noted that in an April 2008 VA examination, the examiner only discussed three scars on the Veteran's left foot. Nevertheless, the Veteran's representative stated that the Veteran had four scars on his left foot and that such had not been considered under the "change of scar rules." Thus, the Board finds that a new, more contemporaneous examination is needed so that the new criteria may be considered. See Green, 1 Vet. App. 121, 124 (1991). Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain the Veteran's VAMC outpatient treatment records dated since April 2013. 2. Thereafter, make arrangements with the appropriate VA medical facility for the Veteran to be afforded the following examinations: a. orthopedic examination to determine the current severity of his patella tendonitis of both knees. The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination. All necessary special studies or tests are to be accomplished, to specifically include x- rays. The examiner must conduct complete range of motion studies and describe all current symptomatology of both knees. The examiner must state with respect to both knees, whether there is recurrent subluxation or lateral instability, and, if so, whether disability manifested by recurrent subluxation or lateral instability is best characterized as "slight," "moderate," or "severe." The examiner must state whether the semilunar cartilage is dislocated, and whether there are frequent episodes of locking, pain, or effusion into the joint. The examiner must also indicate whether there is any evidence of impairment of the tibia or fibula in terms of malunion or nonunion. If there is evidence of malunion of the tibia or fibula, the examiner must indicate whether the resulting disability is best described as "slight," "moderate," or "marked" in degree. If there is evidence of nonunion of the tibia or fibula, the examiner must indicate whether loose motion is present and whether a brace is required. The examiner must render an opinion as to the extent to which the Veteran experiences weakness, excess fatigability, incoordination, or pain in his knees due to repeated use or flare-ups, and must equate these problems to additional loss in range of motion beyond that shown clinically. If the loss of motion manifested on examination represents maximum disability, or there are no functional limitations shown, the examiner must so state. The examiner must describe the impact of the Veteran's service-connected bilateral knee disabilities on his daily activities and employability. The examiner is requested to provide a FULLY REASONED EXPLANATION for his or her opinions, based on his or her clinical experience, medical expertise, and established medical principles. b. A skin examination to determine the current severity of the Veteran's scars on the left foot. The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination. All necessary special studies or tests are to be accomplished. The examiner must describe the manifestations of the Veteran's service-connected scars of the left foot. In this regard, the examiner MUST state how many scars are on the Veteran's left foot. The examiner then MUST provide a measurement of the length and width of each scar as well as the areas of the scars in terms of square inches. The examiner should also indicate whether such scars are superficial, unstable, painful on objective demonstration, and/or cause limitation of motion. (A superficial scar is one not associated with underlying soft tissue damage, and an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.) The examiner MUST also report whether there is any associated underlying muscle damage due to any of the scars and, if so, indicate which muscle group(s) is/ are involved. The examiner should also state whether the scar is a deep scar. (A deep scar is one associated with underlying soft tissue damage.) The examiner is requested to provide a FULLY REASONED EXPLANATION for his or her opinions, based on his or her clinical experience, medical expertise, and established medical principles. 3. The RO must then review and re-adjudicate the issues that remain on appeal. In regard to the Veteran's increased rating claim for scars on the left foot, the RO must consider the claim under both the skin disability Diagnostic Codes in effect prior to the 2008 change, and under the currently effective skin disability Diagnostic Codes. If any claim remains denied or not granted to the Veteran's satisfaction, the RO must provide the Veteran and his representative an SSOC, and an appropriate period of time must be allowed for response. Thereafter, the case must be returned to this 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs