Citation Nr: 1322159 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 09-47 582 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to a rating in excess of 20 percent for residuals of a fracture of the right ankle with os calcis. 2. Entitlement to service connection for a back disorder. 3. Entitlement to service connection for a bilateral knee disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran served on active duty from October 2004 to October 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Virtual VA claims file has been reviewed. The claim for service connection for a low back disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Residuals of a fracture of the right ankle with os calcis are productive of no more than a moderately severe foot injury. 2. There is a painful scar of the right ankle. 3. Bilateral knee arthralgia (Gulf War) is attributable to service. CONCLUSIONS OF LAW 1. The criteria for an initial rating higher than 20 percent for residuals of a right ankle fracture with os calcis have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284 (2012). 2. Right ankle scar is 10 percent disabling. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 7804 (2012) 3. A bilateral knee arthralgia was incurred in wartime service (Gulf War). 38 U.S.C.A. §§ 1110, 1117 (West 2002); 38 C.F.R. §§ 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose 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). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the 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, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the agency of original jurisdiction (AOJ) issued notice letters, dated in September 2008 and November 2010, to the Veteran. These letters explained the evidence necessary to substantiate the Veteran's claims for service connection and an increased rating, as well as the legal criteria for entitlement to such benefits. The letters also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The claims file contains the Veteran's available service treatment records, reports of VA post-service treatment, and the Veteran's own statements in support of his claims. In connection with the current appeal, the Veteran was afforded VA examinations responsive to the claim for service connection of a bilateral knee disorder. McClendon v. Nicholson, 20 Vet. App. 79 (2006). The opinions were conducted by medical professionals, following thorough examination of the Veteran, solicitation of history, and review of the claims file. The Veteran was also afforded VA examinations responsive to the claim for an increased disability rating. The Board has reviewed the examination report, and finds that it is adequate for the purpose of deciding the increased rating claim on appeal. The examination reports contain all the findings needed to rate the Veteran's service-connected right ankle disability, including his history and clinical evaluation. The Board finds that the opinions are adequate. The Veteran's appeal for a higher evaluation for the right ankle is distinguished from the facts in Proscelle v. Derwinski, 2 Vet. App. 629, 633 (1992), where no VA examination was provided during the rating claim, and a veteran specifically stated that his disability "has increased in severity [such] that I rate a higher disability," constituting at least both some assertion by the veteran and some evidence of worsening of disability since the last VA examination. Proscelle, 2 Vet. App. at 632. In the Veteran's case currently on appeal to the Board, there is no evidence of worsening of the Veteran's disabilities since the 2008 and 2012 VA examinations, including no assertion by the Veteran of worsening since the last VA examination. The Veteran here does not assert that his right ankle disability has worsened since the most recent, May 2012 VA examination; he merely asserts entitlement to a higher disability evaluation. The Veteran has not submitted evidence of worsening, and the evidence of record, including the medical evidence reflecting on the severity of the disability on appeal, does not suggest that this disability worsened since the most recent VA examination, or since VA treatment records in 2013. As there is no evidence of worsening since the last VA examination, a remand for a new VA examination is not warranted, and is not required by the VCAA. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (mere passage of time does not require VA to provide a new medical examination); VAOPGCPREC 11-95 (interpreting that a new examination is appropriate when there is an assertion of an increase in severity since the last examination). The Veteran has been afforded adequate examinations on the issue decided herein. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Additionally, the Veteran has not alleged that any examination is inadequate to decide the claims being adjudicated herein, so the examinations are presumed to have been adequate. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of the opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). Legal Criteria for Evaluation Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here the disability has not significantly changed and a uniform evaluation is warranted. More generally, disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. In addition, the intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. This regulation also provides that the intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and that crepitation should be noted carefully as points of contact which are diseased. Thus, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The Court has also held that VA's regulations pertaining to whether a compensable rating is warranted for pain (as shown by adequate pathology and evidenced by the visible behavior in undertaking motion), 38 C.F.R. §§ 4.40 and 4.59, apply regardless of whether the painful motion is related to arthritis. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Analysis for an Disability Evaluation The Veteran is currently assigned a disability rating for residuals of a right ankle fracture with os calcis by analogy to DC 5284. See 38 C.F.R. § 4.20 (2012) (when an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but also the anatomical localization and symptomatology, are closely analogous). Under Diagnostic Code 5284, a 20 percent rating is assigned under this Code for a moderately severe foot injury. A 30 percent disability is assigned under this Code for a severe foot injury. See 38 C.F.R. § 4.71a, Diagnostic Code 5284. The Board observes that the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). In order to effectively evaluate the severity of the Veteran's residuals of a right ankle fracture with os calcis, an additional Diagnostic Code is also for consideration. Under Diagnostic Code 5270, a 20 percent evaluation is available where there is ankylosis of the ankle in plantar flexion, less than 30 degrees. A 30 percent evaluation is available for ankylosis of the ankle between 30 and 40 degrees in plantar flexion or between 0 and 10 degrees in dorsiflexion. A 40 percent disability evaluation is for assignment where there is ankylosis of the ankle in plantar flexion at more than 40 degrees or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion, or eversion deformity. See 38 C.F.R. § 4.71a, Diagnostic Code 5270. In January 2009, the RO granted entitlement to service connection for residuals of a right ankle fracture with os calcis, and assigned a 20 percent disability evaluation, effective October 12, 2008. The Veteran underwent VA examinations during the appeal period. At the Veteran's September 2008 VA examination, the Veteran reported a history of a fracture of the right fibula. He complained of paresthesia of the right ankle area in the scar area, as well as tingling. He also complained of ligament damage, giving way, stiffness, weakness, effusion, and pain, increased with activity. He denied the use of assistive devices for walking, constitutional symptoms of arthritis, and incapacitating episodes, but reported experiencing limitations on standing to 15 to 30 minutes and limitations on walking to 1-3 miles. Upon examination, the Veteran's gait was normal, but there was evidence of abnormal weight bearing, evidenced by shoe wear pattern. There was no indication of deformity, instability, dislocation, callus formation, or skin breakdown. Range of motion testing showed that the Veteran had dorsiflexion to 10 degrees and plantar flexion to 50 degrees, without additional limitation of motion upon repetitive use. There was no loss of a bone, inflammatory arthritis, or ankylosis of the joints; however, the Veteran had popping of the flexor tendon of the toes with plantar flexion of the right ankle. There was 10 degree varus angulation of the os calcis from the long axis of the tibia. X-rays showed metallic hardware at the distal fibula, probably associated with old healed fracture; there was no acute fracture or dislocation and the ankle mortise was preserved. In an August 2009 statement, the Veteran reported experiencing pain, stiffness, and nerve damage of the right ankle. VA treatment records dated January 2010 through May 2013 show that the Veteran complained of right ankle pain and reported a history of nerve damage of the right ankle. Statements from the Veteran's friends, family, and colleagues, received in March 2011, indicate that the Veteran complained of pain and loss of sensation in the right ankle. At a July 2011 VA examination, the Veteran complained of right ankle pain, as well as numbness on the lateral aspect of the foot following his right ankle surgery. Upon examination, the Veteran did not have loss of bone or part of a bone, abnormal weight bearing, or inflammatory arthritis. The Veteran was most recently afforded a VA examination in May 2012. The VA examiner noted that the Veteran underwent a right ankle fracture repair in August 2007. According to the report, the Veteran reported experiencing tingling of the right foot, numbness and tenderness of the scar, and pain upon prolonged walking. Range of motion testing showed that the Veteran had plantar flexion to 30 degrees and dorsiflexion to 20 degrees; there was no evidence of pain on plantar flexion, even on repetitive motion testing. Upon dorsiflexion, he had pain on motion, but without additional limitation of motion. Functional impairment was noted as pain on movement. There was no tenderness on palpation; strength testing was full bilaterally in plantar flexion and dorsiflexion. There was no weakness, excess fatigability, incoordination, swelling, deformity, atrophy, instability, or disturbance of locomotion upon evaluation. There was also no evidence of laxity, ankylosis, shin splints, Achilles tendonitis, stress fractures, or malunion of calcaneus (os calcis) or talus (astragalus); the Veteran has not undergone a talectomy (astragalectomy). The Veteran had a right ankle scar. The VA examiner noted that the Veteran did not use any assistive devices. X-rays showed degenerative arthritis of the right ankle, with post-surgical changes at the distal fibular shaft and mild spurring of the medial tibiotalar joint. A scars examination was also provided. Evaluation found that the Veteran has a post-operative scar of the right ankle secondary to surgical treatment of a fracture. The scar was painful, but not unstable or productive of a change in pigmentation. The scar is linear and 13 cm long; the scar does not cause limitation of function. After a review of the lay and medical evidence, the Board finds that the Veteran's residuals of a fracture of the right ankle with os calcis is no more than 20 percent disabling. The current evaluation contemplates painful motion and a moderately severe injury. A higher evaluation may be assigned if there is a severe foot injury. 38 C.F.R. § 4.7 (2012). However, the objective clinical evidence of record for the entire rating period on appeal does not show that the Veteran's residuals of a fracture of the right ankle with os calcis are severe. Significantly, the Veteran's May 2012 VA examination showed that the Veteran had range of motion of the right ankle from zero (0) to 30 degrees in plantar flexion, with dorsiflexion to 20 degrees. At the September 2008 VA examination, he had range of motion to 50 degrees in plantar flexion, with dorsiflexion to 10 degrees. See 38 C.F.R. § 4.71, Plate II (full range of motion for the ankles is zero (0) to 20 degrees dorsiflexion and zero (0) to 45 degrees plantar flexion). At the September 2008 and May 2012 VA examinations, there was no ankylosis, Achilles tendonitis, or unstable ligaments; his residuals of a right ankle fracture with os calcis was not productive of deformity or swelling of the ankle joint. There is no objective clinical indication that he has additional functional impairment, above and beyond the 20-percent level for the right ankle, which would support an even higher rating. In this regard, the Board points out that the Veteran's VA examination reports were repeatedly negative for objective evidence of incoordination, weakness, abnormal movement, or excess fatigability. See DeLuca, citing 38 C.F.R. §§ 4.40, 4.45, and 4.59. There was also no evidence of instability or locking, although the Veteran reports experiencing pain and stiffness. Likewise, there was no objective evidence of decreased motor strength. His pain did not significantly inhibit his range of motion or otherwise create functional limitations. Rather, when tested his remaining functional use was no worse than 30 degrees of plantar flexion and 10 degrees dorsiflexion. There also is no objective clinical indication that he has other symptoms (e.g., premature or excess fatigability, weakness, incoordination) which otherwise result in any additional functional limitation in his right ankle to a degree or extent that would support a higher rating. In particular, the May 2012 VA examiner noted that there was a mild increase in pain upon repetitive dorsiflexion, but found that there was no additional weakness, fatigability, incoordination, lack of endurance, or additional loss of motion. As a result, his current 20 percent rating for residuals of a right ankle fracture adequately compensates him for the extent of his pain, including insofar as its resulting effect on his range of motion. The Board also considered whether the Veteran may be entitled to a higher rating under other potentially applicable Diagnostic Codes for either rating period. With regard to the criteria under Diagnostic Code 5270, there is no evidence of ankylosis of the Veteran's right ankle. The above evidence reflects that, at no time during the appeal period, have the Veteran's symptoms more nearly approximated ankylosis of the right ankle in plantar flexion between 30 and 40 degrees or in dorsiflexion between 0 and 10 degrees, or in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees with abduction, adduction, inversion, or eversion deformity warranting a 30 or 40 percent rating under Diagnostic Code 5270, the only diagnostic code applicable to the ankle with criteria for higher schedular ratings. The other diagnostic codes applicable to the ankle, 5271 through 5274, applicable to marked limitation of motion of the ankle, ankylosis of subastralgar or tarsal joint, malunion of os calcis, and astragalectomy, also provide for maximum 20 percent ratings. Moreover, the Rating Schedule generally prohibits pyramiding, i.e., evaluating the same disability under different diagnostic codes, 38 C.F.R. § 4.14, and the Court has held that pyramiding is disfavored "unless the regulation expressly provides otherwise," Cullen v. Shinseki, 24 Vet. App. 74, 84 (2010). As such, the Board does not find that the medical evidence supports a higher schedular rating. One function of the Board is to consider the lay evidence and pleadings. However, other than that recorded during medical evaluations, the record is remarkably lacking in substantive pleadings from the Veteran or the representative. The Board is fully aware that the appellant is competent to report his symptoms, and that he testified as to numbness of the right ankle at the March 2011 hearing before the RO. However, this assertion is inconsistent with the objective evidence. Under the circumstances, the medical evidence is more probative than any implied pleadings or lay evidence. Extraschedular Considerations As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptoms of the Veteran's residuals of a right ankle fracture is fully contemplated by the applicable rating criteria. As shown above, the criteria include symptoms of stiffness, limitation of motion, and pain, each of which were addressed in the VA examinations and treatment records and which provided the basis for the disability rating. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required. In any event, the Veteran did not claim, and the evidence does not reflect, that there has been marked interference with employment, frequent hospitalization, or that the Veteran's symptoms have otherwise rendered impractical the application of the regular schedular standards. None of the VA examiners indicated that the Veteran lost any time from work due to his right ankle disability. Therefore, referral for consideration of an extraschedular rating for the Veteran's residuals of a right ankle fracture with os calcis is not warranted. 38 C.F.R. § 3.321(b)(1). In the absence of exceptional factors associated with residuals of a right ankle fracture with os calcis, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Scar The Board has considered whether the Veteran is entitled to a separate rating for the scar under 38 C.F.R. § 4.118, Diagnostic Codes 7801 to 7805. On VA examination in May 2012, the Veteran's scar was noted as measuring 13 centimeters and being productive of pain. The scar was not tender to palpation and there was no evidence of skin breakdown, disfigurement, keloid formation, adherence, change in pigmentation, or inflammation. Since there is a painful scar, a separate 10 percent evaluation is warranted. Legal Criteria for Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Service connection may be granted for any disease initially diagnosed after service 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). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. For chronic diseases, for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, the Veteran does not have any "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply to the claim for service connection for a bilateral knee disorder. Service connection may be granted to a Persian Gulf War veteran who exhibits objective indications of a "qualifying chronic disability." 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1). A qualifying chronic disability under this section is currently defined as either an undiagnosed illness or medically unexplained chronic multisymptom illness defined by a cluster of signs or symptoms. 38 U.S.C.A. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2). The symptoms must be manifest to a degree of 10 percent or more during the presumptive periods prescribed by the Secretary, or by December 31, 2016. 38 U.S.C.A. § 1117(a)(1)(B); 38 C.F.R. § 3.317(a)(1)(i). By history, physical examination, and laboratory tests, the disability cannot be attributable to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(ii). Objective indications of such a chronic disability include both "signs" in the medical sense of objective evidence perceptible to an examining physician, and other non-medical indicators capable of independent verification. 38 C.F.R. § 3.317(a)(2)(ii)(3). Disabilities that have existed for at least 6 months and disabilities that exhibit intermittent episodes of improvement and worsening over a 6 month period will be considered chronic. 38 C.F.R. § 3.317(a)(2)(ii)(4). The signs and symptoms which maybe manifestations of undiagnosed illness or a chronic multisymptom illness include, but are not limited to, fatigue and muscle and joint pain. 38 U.S.C.A. § 1117(g); 38 C.F.R. § 3.317(b). Service connection is also warranted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis for Service Connection Service treatment records indicate that the Veteran complained of bilateral knee pain beginning in October 2007; December 2007 records show a diagnosis of patellofemoral syndrome of the knees. At the Veteran's August 2008 Report of Medical Assessment for separation, the Veteran reported a history of bilateral knee pain. The examining physician noted that the Veteran had been diagnosed with patellofemoral pain syndrome; the Veteran did physical therapy with decreased pain. Additionally, October 2007 records from Black Hills Orthopedic and Spine Center indicate that the Veteran complained of joint problems, including his knees. The Veteran was initially afforded a VA examination in September 2008, in connection with his claim for service connection. According to the examination report, the Veteran reported that he began experiencing daily, bilateral knee pain in October 2007. He denied an injury to the knees, and related that he thought his knee symptoms were due to favoring his ankles. He complained of pain, stiffness, and weakness of the knees. Upon examination, he had range of motion from zero (0) to 130 degrees on the right and zero (0) to 140 degrees on the left. There was no indication of Osgood-Schlatter's disease, crepitation, mass, clicking, instability, patellar abnormality, or a meniscus, tendon, or bursa abnormality; there was grinding of the right knee. X-rays did not show fracture, dislocation, or joint effusion. The VA examiner opined that there were no objective findings to warrant a diagnosis or etiology opinion. A July 2011 VA examination report indicates that the Veteran continued to complain of bilateral knee pain. Upon examination, there was no evidence of deformity, instability, incoordination, locking, inflammation, effusion, or dislocation or subluxation; the Veteran did report giving way, pain, stiffness, weakness, and decreased speed of motion. There were no constitutional symptoms of arthritis or incapacitating episodes. Range of motion was 0 to 130 degrees bilaterally. X-rays showed small joint effusions bilaterally, without fracture or dislocation. The diagnosis was arthralgia. The VA examiner opined that the Veteran's bilateral knee arthralgia was not related to service because the only objective finding in service was decreased range of motion, upon which the diagnosis of patellofemoral syndrome was issued. The VA examiner also opined that he expected more findings on physical examination and more complaints of knee pain to the Veteran's treating providers at VA after his service and/or a notation of knee problems on the Veteran's VA problems list. However, this is not determinative as to whether his current bilateral knee disorder is etiologically related to his service and does not preclude service connection in this case. Since October 2007, the Veteran has consistently alleged complaints of pain and limited motion of his knees. During service, he was diagnosed with patellofemoral pain syndrome and the VA examiner in 2011 diagnosed bilateral knee arthralgia and noted joint effusion of the knees on x-ray. Therefore, the Veteran's complaints in service and nearly 5 years later are essentially diagnosed as the same thing - a pain syndrome. Generally, VA does not grant service connection for pain, standing alone, without underlying disease or injury. However, the AOJ has recognized that the appellant had Gulf War service. There is no diagnosis in this case and real pathology has not been identified. Rather, there is pain and some otherwise unremarkable findings. Here, there is no rational basis to ignore the facts and the VA opinion in this case is unconvincing. Stated differently the appellant has an undiagnosed illness manifested by pain in each knee. ORDER Entitlement to a disability rating in excess of 20 percent for residuals of a right ankle fracture with os calcis is denied. A 10 percent evaluation for right ankle scar is granted. Entitlement to service connection for a bilateral knee arthralgia (Gulf War) is granted. REMAND VA must make all necessary efforts to obtain relevant records in the possession of a Federal agency. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA records are considered to be constructively of record and VA is charged with knowledge of their contents. Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). The Veteran testified in March 2011 and reported in a May 2011 statement that he has received post-service treatment at the VA Medical Centers in Daytona Beach, Florida and Huntington, West Virginia. To the extent that there are any VA medical records related to the Veteran's claims for a low back disorder, such records must be obtained and associated with his claims file. Under the VCAA, VA must provide an examination when there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Lay statements can satisfy each of these elements in certain circumstances, and the threshold for finding that the disability (or symptoms of a disability) may be associated with service is low. Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010); McLendon, 20 Vet. App. at 83. The Board acknowledges that the Veteran was previously afforded a VA examination in September 2008. At that time, the VA examiner found that there was no evidence of a back disability. However, the VA examiner, while noting that the Veteran reported a history of back pain since 2007, also remarked that the Veteran's claims file only showed complaints and treatment related to the Veteran's right ankle. Likewise, the VA examiner did not discuss whether the Veteran's mild apex right thoracolumbar scoliosis, found upon x-ray at that examination. Nonetheless, service treatment records confirm that the Veteran complained of low back pain beginning in October 2007 and reported such back pain at his separation; October 2007 records from Black Hills Orthopedic and Spine Center also show complaints of back pain. Moreover, post-service VA treatment records show that the Veteran has been treated for complaints of low back pain since his discharge from service. However, these VA treatment records suggest that the Veteran's more recent complaints, since at least August 2011, may be related to an on-the-job lifting injury. VA adjudicators may consider only independent medical evidence to support their findings; they may not rely on their own unsubstantiated medical conclusions. If the medical evidence of record is insufficient, VA is always free to supplement the record by seeking an advisory opinion, or ordering a medical examination to support its ultimate conclusions. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Accordingly, the Board finds that the Veteran should be afforded a VA examination regarding his claim for service connection for a low back disorder. See 38 U.S.C.A. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4) (VA has an affirmative duty to obtain an examination of the claimant at VA health-care facilities if the evidence of record does not contain adequate evidence to decide a claim). Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file the Veteran's VA treatment records from the Daytona Beach, Florida and Huntington, West Virginia Medical Centers and all associated clinics, as well as any other VA facility identified by the Veteran or in the record, for the period since September 2008. 2. The Veteran should be afforded a VA examination to determine the nature and etiology of any low back disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should indicate whether it is as least as likely as not (50 percent probability or more) that any low back disorder is caused by service-connected disabilities or is related to service (to include an undiagnosed illness). If the examiner finds that low back disorder is not caused by service-connected right and left ankle disabilities or related to service, the examiner should specifically answer the question whether any low back disorder is aggravated by service-connected disabilities. The provider is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinions. A complete rationale should accompany each opinion provided. 3. Readjudicate the claim for service connection. If, upon completion of the above action, the benefit sought remains denied, the case should be returned to the Board after compliance with requisite appellate procedures. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs