Citation Nr: 1323191	
Decision Date: 07/19/13    Archive Date: 07/24/13

DOCKET NO.  07-29 805	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to service connection for a right knee disorder, including secondary to the service-connected patellofemoral syndrome of the left knee. 

2.  Entitlement to service connection for a left hip disorder, including secondary to the service-connected patellofemoral syndrome of the left knee. 

3.  Entitlement to service connection for a right hip disorder, including secondary to the service-connected patellofemoral syndrome of the left knee. 

4.  Entitlement to service connection for a low back disorder, including secondary to the service-connected patellofemoral syndrome of the left knee. 

5.  Entitlement to service connection for a kidney disorder, including right renal atrophy with renal insufficiency. 

6.  Entitlement to service connection for a traumatic brain injury (TBI), including headaches. 

7.  Entitlement to an evaluation in excess of 10 percent for patellofemoral syndrome of the left knee. 

8.  Entitlement to an increased (compensable) evaluation for bilateral defective hearing.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESSES AT HEARING ON APPEAL

The Veteran and his son


ATTORNEY FOR THE BOARD

Shauna M. Watkins, Associate Counsel


INTRODUCTION

The Veteran had active military service from June 1971 to June 1975. 

These matters initially come before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Houston, Texas, U.S. Department of Veterans Affairs (VA) Regional Office (RO).  

At an RO hearing in October 2010, the Veteran withdrew from the appeal his claim of entitlement to special monthly pension based on the need for aid and attendance. That claim, therefore, is not currently before the Board.

A hearing at the RO before the undersigned Acting Veterans Law Judge (AVLJ) was held in August 2011.  A transcript of the hearing has been associated with the claims file.

The Board remanded the appeal for additional development in January 2012.
In July 2012, the case was returned to the Board.  Upon reviewing the claims folder, the Board referred the claims to a specialist for an advisory medical opinion.  See 38 U.S.C.A. § 7109(a) (West 2002); 38 C.F.R. § 20.901 (2012); see also generally Wray v. Brown, 7 Vet. App. 488, 493 (1995).  This opinion was obtained in September 2012 and is included in the claims file.  It is noted that the Veteran and his representative have been given the opportunity to provide any comments with respect to this opinion and those comments have been included in the claims file.  

In January 2013 the Board again remanded the matters to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development.  The development has been completed.  The claims have been returned to the Board and are now ready for appellate disposition.

The Veteran's Virtual VA paperless claims file has also been reviewed in preparing this decision, along with the Veteran's paper claims file.

The issue of entitlement to an increased (compensable) rating for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC in Washington, DC.


FINDINGS OF FACT

1.  The Veteran's right knee disorder was not manifested during his active military service, is not shown to be causally or etiologically related to his active military service, is not shown to have manifested to a degree of 10 percent or more within one year from the date of separation from the military, and is not shown to be caused or aggravated by a service-connected disability.

2.  The Veteran's left hip disorder was not manifested during his active military service, is not shown to be causally or etiologically related to his active military service, is not shown to have manifested to a degree of 10 percent or more within one year from the date of separation from the military, and is not shown to be caused or aggravated by a service-connected disability.

3.  The Veteran's right hip disorder was not manifested during his active military service, is not shown to be causally or etiologically related to his active military service, is not shown to have manifested to a degree of 10 percent or more within one year from the date of separation from the military, and is not shown to be caused or aggravated by a service-connected disability.

4.  The Veteran's low back disorder was not manifested during his active military service, is not shown to be causally or etiologically related to his active military service, is not shown to have manifested to a degree of 10 percent or more within one year from the date of separation from the military, and is not shown to be caused or aggravated by a service-connected disability.

5.  The Veteran's kidney disorder was not manifested during his active military service, is not shown to be causally or etiologically related to his active military service, and is not shown to have manifested to a degree of 10 percent or more within one year from the date of separation from the military.

6.  The Veteran's headache disorder (claimed as TBI with headaches) was not manifested during his active military service, is not shown to be causally or etiologically related to his active military service, and is not shown to have manifested to a degree of 10 percent or more within one year from the date of separation from the military.

7.  Throughout the appeal, the Veteran's service-connected patellofemoral syndrome of the left knee has been manifested by, at worst, flexion limited to 130 degrees and extension limited to 0 degrees, even with consideration of his pain, and absent instability or subluxation.

CONCLUSIONS OF LAW

1.  Service connection for a right knee disorder, including secondary to the service-connected patellofemoral syndrome of the left knee, is not established.  38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2012).

2.  Service connection for a left hip disorder, including secondary to the service-connected patellofemoral syndrome of the left knee, is not established.  38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2012).

3.  Service connection for a right hip disorder, including secondary to the service-connected patellofemoral syndrome of the left knee, is not established.  38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2012).

4.  Service connection for a low back disorder, including secondary to the service-connected patellofemoral syndrome of the left knee, is not established.  38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2012).

5.  Service connection for a kidney disorder, including right renal atrophy with renal insufficiency, is not established.  38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012).

6.  Service connection for a TBI with headaches is not established.  38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012).

7.  The criteria for a rating in excess of 10 percent for the service-connected patellofemoral syndrome of the left knee are not met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5260 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).  

I.  VA's Duties to Notify and Assist

Under applicable law, VA has a 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, 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA 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.  This notice must be provided prior to an initial unfavorable decision on a claim by the Agency of Original Jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

Regarding the service connection claims, the Board finds that the content requirements of a duty to assist notice letter have been fully satisfied.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  With respect to the right hip, a pre-adjudicatory letter dated November 2005 informed the Veteran of the types of evidence and/or evidence needed to substantiate the claim, and the relative duties on the part of himself and VA in developing his claim.  The Veteran was not provided notice regarding the criteria for establishing an initial disability rating and effective date of award, but this error is harmless as these issues are not implicated due to the denial of the claim.

With respect to the lumbar spine and kidney disorder claims, a pre-adjudicatory letters in March 2009 fully satisfied all VCAA content notice requirements.  A July 2009 RO notice fully satisfied all VCAA time and content notice requirements for the TBI claim.  A January 2010 letter fully satisfied all VCAA time and content notice requirements for the left hip and right knee claims.

Regarding the increased rating claim for left knee disability, prior to the initial adjudication of the Veteran's increased rating claims, a letter dated in January 2010 fully satisfied the duty to notify provisions.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187.  

Additionally, the United States Court of Appeals for Veterans Claims (Court) held that to satisfy the first Quartuccio element for an increased-compensation claim, section 5103(a) compliant notice must meet a four part test laid out in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008).  The United States Court of Appeals for the Federal Circuit (Federal Circuit) overruled the Vazquez-Flores in part, striking claimant-tailored and "daily life" notice elements.  See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  Thus modified, VA must notify the claimant that, 1) to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability, 2) a disability rating will be determined by applying relevant DCs, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment, and 3) provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation.  See Vazquez-Flores, 22 Vet. App. at 43, overruled in part sub. nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  This action was accomplished by the January 2010 notice letter to the Veteran regarding his increased rating claims.  

All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims.  Once this has been accomplished, all due process concerns have been satisfied.  See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (2012) (harmless error).  In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence.  Accordingly, there is no further duty to notify. 

VA also has a duty to assist the Veteran in the development of the claims.  This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues has been obtained.  His STRs, personnel records, Social Security Administration (SSA) disability benefits records, and post-service VA and private treatment records have been obtained.  The RO made attempts to obtain the records from Dr. M., a private physician, and from a pertinent Air Force Base.  In a November 2010 statement, Dr. M. informed VA that he did not have any records on file pertaining to the Veteran.  The Veteran was informed of this in the March 2011 SSOC.  Additionally, at the Board hearing in August 2011, the Veteran submitted e-mail correspondence with Hickam Air Force Base, which indicated having no records of records related to an accident.  The Veteran has generally asserted that these records may have been destroyed due to a fire at Osan Air Force Base in 1972 or 1973.  Thus, the Board does not have notice of any additional relevant evidence that is available but has not been obtained.  

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law.  The record indicates that the Veteran participated in VA examinations in May 2006, March 2009, February 2010, and February 2012, the results of which have been included in the claims file for review.  The examinations involved reviews of the claims file, thorough examinations of the Veteran, and opinions that are supported by sufficient rationale.  

Furthermore, the Board referred the claims to a specialist for a clarifying advisory medical opinion.  See 38 U.S.C.A. § 7109(a) (West 2002); 38 C.F.R. § 20.901 (2012).  This opinion was obtained in September 2012 and is included in the claims file.  It is noted that the Veteran and his representative have been given the opportunity to provide any comments with respect to this opinion and those comments have been included in the claims file.  

Overall, the Board finds that the examinations are adequate for rating purposes and, when viewed in their entirety, address all necessary findings.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim).  

With respect to the increased rating claim for left knee disability, the evidence of record also does not suggest that the Veteran's service-connected left knee disability has worsened since his last examination.  Consequently, another examination to evaluate the severity of these disabilities is not warranted because there is sufficient evidence already of record to fairly decide this claim insofar as assessing the severity of the disability.  See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); Allday v. Brown, 7 Vet. App. 517, 526 (1995). 

Regarding the TBI claim, the Board notes that while a VA medical opinion has been provided (following a thorough review of the claims file), a VA examination have not been obtained for this claim.  As addressed in more detail below, the Board finds that the Veteran's allegations of a TBI injury with continuity of headaches since service are not credible when viewed against the entire evidentiary record.  The VA medical opinion is based upon records review and identifies a factual basis of the onset of headaches many years after service which the Board finds is factually accurate.  Thus, the Board finds that this examination report is adequate for rating purposes.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (referring to the following guiding factors contained in Federal Rules of Evidence 702 for evaluating the probative value of expert medical opinion as follows: (1) the testimony is based upon sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the expert witness has applied the principles and methods reliably to the facts of the case). 

Notably, the Veteran has presented a witness statement attesting to the fact that a VA examination lasted no longer than 8 to 10 minutes.  The Veteran was described as being confused and in pain as a result of this examination.  However, the Board can find no specific examination insufficiencies from review of the examination report to warrant providing another examination.

Furthermore, the Veteran was afforded a Board hearing in August 2011.  A Board member has two duties at a hearing: (1) a duty to fully explain the issues still outstanding that are relevant and material to substantiating the claim, and (2) a duty to suggest that a claimant submit evidence on an issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record.  See 38 C.F.R. § 3.103(c)(2) (2012); Procopio v. Shinseki, No. 11-1253, 2012 WL 4882287 at 3 (Vet. App. Oct. 16, 2012) (citing Bryant v. Shinseki, 23 Vet. App. 488, 492, 496 (2010)).

Here, during the Board hearing, the AVLJ specifically noted the issues as increased ratings for a left knee disability and hearing loss, and service connection for the right knee, left hip, right hip, renal disorder, lumbar spine disorder, and residuals of a TBI due to headaches.  See Board Hearing Transcript, pages 2 and 4.  The Veteran was assisted at the hearing by an accredited representative from the Texas Veterans Commission (TVC).  See Board Hearing Transcript, page 2.  The representative and the AVLJ noted the elements of the claims that were lacking to substantiate the claims for benefits.  See Board Hearing Transcript, pages 9-11, 13-22.  The representative and the AVLJ then asked questions to ascertain whether the Veteran had submitted evidence in support of these claims.  See Board Hearing Transcript, pages 2-3, 8.  In addition, the AVLJ 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.  Id.  The undersigned explained to the Veteran the types of evidence which could help substantiate the circumstances of the actual injury event as well as the medical residuals.  The undersigned also provided the Veteran a copy of pertinent STRs for his review after the hearing.

On appeal, neither the Veteran nor his representative has asserted that VA failed to comply with the hearing requirements, nor identified any prejudice in the conduct of the Board hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for benefits.  As such, the Board finds that the AVLJ complied with the aforementioned hearing duties, and that any error in notice provided during the Veteran's hearing constitutes harmless error.  To the extent any error is alleged, it was cured with a Board remand for additional development.

The Board is also satisfied as to substantial compliance with its January 2012 and January 2013 remand directives.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998).  The January 2012 remand included obtaining the Veteran's recent VA records and his personnel records, which were obtained and associated with the claims file.  The January 2012 remand also directed the AMC to print the Veteran's SSA records, which were printed and associated with the claims file.  The AMC also provided the Veteran with a copy of his hearing transcript, as directed in the January 2012 remand.  The January 2012 remand also instructed the AMC to provide the Veteran with additional VA examinations and medical opinions, which were provided in February 2012.  Finally, both remands directed the AMC to readjudicate the claims based on the new evidence of record, which was accomplished in the March 2012 and March 2013 SSOCs.  Thus, the Board finds that there has been substantial compliance with its remand directives.  Id.

For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claims.  Therefore, no further assistance to the Veteran with the development of evidence is required.

II.  General Regulations and Statutes for Service Connection Claims

To establish direct service connection, the record must contain competent evidence of (1) a current disorder; (2) in-service incurrence or aggravation of an injury or disease; and, (3) a nexus between the current disorder and the in-service disease or injury.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  In other words, entitlement to service connection for a particular disorder requires evidence of the existence of a current disorder and evidence that the disorder resulted from a disease or injury incurred in or aggravated during service.  38 U.S.C.A. §§ 1110, 1131.

Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service.  38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d).  

Service connection for certain chronic diseases, including arthritis (i.e., degenerative joint disease), nephritis, calculi of the kidney, brain hemorrhage, and brain thrombosis, will be presumed if they manifest to a compensable degree within one year following the active military service.  This presumption, however, is rebuttable by probative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection.  The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid.  38 C.F.R.  § 3.303(d). 

For the showing of a chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time.  If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim.  38 C.F.R. § 3.303(b).  However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997).

In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the service-connected disability and the current disorder.  See Wallin v. West, 11 Vet. App. 509, 512 (1998).

In addition, the regulations provide that service connection is warranted for a disorder that is aggravated by, proximately due to, or the result of a service-connected disease or injury.  38 C.F.R. § 3.310.  Any additional impairment of earning capacity resulting from an already service-connected disability, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected disability, should also be compensated.  Allen v. Brown, 7 Vet. App. 439 (1995).  When service connection is thus established for a secondary disorder, the secondary disorder shall be considered a part of the original disability.  Id.

The Veteran filed his right hip disability claim in October 2005, and his other service-connected disability claims after October 10, 2006.  The Board notes that 38 C.F.R. § 3.310 was amended, effective October 10, 2006.  Under the revised 38 C.F.R. § 3.310(b) (the existing provision at 38 C.F.R. § 3.310(b) was moved to sub-section (c)), any increase in severity of a non-service-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service-connected.

In reaching this determination as to aggravation of a non-service-connected disorder, consideration is required as to what the competent evidence establishes as the baseline level of severity of the nonservice-connected disease or injury (prior to the onset of aggravation by service-connected disability), in comparison to the medical evidence establishing the current level of severity of the non-service-connected disease or injury.

These findings as to baseline and current levels of severity are to be based upon application of the corresponding criteria under the Schedule for Rating Disabilities (38 C.F.R. part 4) for evaluating that particular non-service-connected disorder.  See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006).  This amendment is not applicable to the right hip disability claim. 

The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  38 U.S.C.A. § 7104(a) (West 2002); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303(a). 

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Equal weight is not accorded to each piece of evidence contained in the record as every item of evidence does not have the same probative value.

In cases where there are conflicting statements or opinions from medical professionals, it is within the Board's province to weigh the probative value of those opinions.  In Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993), the Court stated:

The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators; . . .

So long as the Board provides an adequate reason or basis for doing so, the Board does not err by favoring one competent medical opinion over another.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995).

The VA benefits system does not favor the opinion of a VA examiner over a private examiner, or vice versa.  See 38 U.S.C.A. § 5125; White v. Principi, 243 F.3d 1378, 1381 (Fed. Cir. 2001) (declining to adopt the treating physician rule for adjudicating VA benefits).  Regardless of the source, an examination report must minimally meet the requirement of being sufficiently complete to be adequate for the purpose of adjudicating the claim.  See 38 U.S.C.A. § 5125; 38 C.F.R. § 4.2.

The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion.  See Sklar v. Brown, 5 Vet. App. 140 (1993).

A medical examiner's review of the claims folder may heighten the probative value of an opinion, as the claims folder generally contains all documents associated with a veteran's disability claim, including not only medical examination reports and STRs, but also correspondence, raw medical data, financial information, RO rating decisions, Notices of Disagreement, materials pertaining to claims for conditions not currently at issue, and Board decisions disposing of earlier claims.  See Nieves-Rodriguez, 22 Vet. App. 295 (2008).

However, an examiner's review of the claims folder is not required in each case.  See Snuffer v. Gobber, 10 Vet. App. 400, 403-04 (1997) (review of claims file not required where it would not change the objective and dispositive findings made during a medical examination).  See generally D'Aries v. Peake, 22 Vet. App. 97, 106 (2008) (holding that it is not necessary for a VA medical examiner to specify review of the claims folder where it is clear from the report that the examiner has done so and is familiar with the claimant's extensive medical history).

A significant factor to be considered for any opinion is based on an accurate factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment.  See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis).

Although formal rules of evidence do not apply in the VA benefits system, the Court has indicated that recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the adjudicator's decision.  Rucker v. Brown, 10 Vet. App. 67, 73 (1997).  Within the VA benefits system, VA medical examiners and private physicians offering medical opinions in veterans' benefits cases are essentially considered expert witnesses.  Nieves-Rodriguez, 22 Vet. App. 295 (2008).

In Nieves-Rodriguez, the Court indicated that the Federal Rules of Evidence for evaluating expert medical opinion before U.S. district courts, Fed.R.Evid. 702, are important, guiding factors to be used by VA adjudicators in evaluating the probative value of a medical opinion.  The factors identified in Fed.R.Evid 702 are as follows:

(1) the testimony is based upon sufficient facts or data; 
(2) the testimony is the product of reliable principles and methods; and 
(3) the expert witness has applied the principles and methods reliably to the facts of the case.

A lay claimant is competent to provide testimony concerning factual matters of which he or she has firsthand knowledge (i.e., reporting something seen, sensed or experienced).  Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005).  Under certain circumstances, lay statements may serve to support a benefits claim by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

In Barr, the Court emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of the presence or absence of the claimed symptomatology.

However, there are clearly limitations regarding the competence of a lay claimant to speak to certain matters, such as those involving medical diagnosis and etiology.  See Jandreau, 492 F.3d at 1377 (Fed. Cir. 2007) (noting that a layperson not competent to diagnose a form of cancer).  VA has defined competent lay evidence as any evidence not requiring that the proponent have specialized education, training or experience.  38 C.F.R. § 3.159(a)(1).  Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a layperson.  Id.  Further, competent medical evidence is defined as evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions.  38 C.F.R. § 3.159(a)(2).

The claimant bears the burden of presenting and supporting his/her claim for benefits.  38 U.S.C.A. § 5107(a).  See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009).  In its evaluation, the Board shall consider all information and lay and medical evidence of record.  38 U.S.C.A. § 5107(b).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant.  Id. 

Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner."  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim.  It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

The Board will begin by addressing direct service connection for all of the disorders on appeal.

The Veteran primarily contends that orthopedic disabilities of the right knee, both hips and low back, as well as additional disabilities involving renal atrophy and TBI residuals with headaches, stem from a single inservice accident which occurred on July 5, 1972.  The Veteran describes incurring a "crush" injury between a tractor and a carriage (a diagram of the alleged injury has been provided by the Veteran and incorporated into the claims file).  He has otherwise described the accident as pinning his left knee between the tractor drawbar and light cart, and having his right hip "slammed and pinned" against a corner of the light cart.

In general, the Veteran describes a severe injury involving extensive body bruising, a TBI with headaches, and a blunt trauma to the kidney resulting in passing of blood.  On one occasion, the Veteran described that his bodily impact caused a dent so deep in a cabinet that it had to be replaced.  In one statement, the Veteran described being rushed to the emergency room where he received treatment and was put back into service.  In another statement, he referred to being taken to a "hospital" in an ambulance.  In another statement, the Veteran described the attending physician as being pulled off the golf course to treat him, and that his initial treatment was cursory as the physician wanted to go back to golfing.  In yet another statement, the Veteran described the military physician as actually examining the wrong knee (right), determined that x-rays were not needed, provided a two-week light duty excuse and prescribed some Darvon pain killers.

Notably, the Veteran argues that there are potentially missing documents from Osan Air Force Base concerning an accident investigation as well as a line of duty investigation.

After the accident, the Veteran has described himself as being sore and banged up.  He obtained some relief with pain killers, but also had blood in his urine.  Due to naivety, he did not seek treatment as he assumed that he would properly heal and had very low expectations of the medical staff due to his treatment on the day of accident.  The Veteran next describes being transferred to Shaw Air Force Base (AFB) where he would experience occasional pain of the knee and hip as well as a grinding sensation of the joints with movement.  He attempted to seek treatment on three occasions, but was told there were no available appointments available as he was not sick and could obviously walk.  He has testified that he declined the military's request to delay his discharge for two weeks to evaluate his disabilities, as he had a six-month old son and bills to pay.  He has described chronic hip and knee pain since the accident.  

A fellow service mate recalls hearing that the Veteran was "crushed" between a tractor and an NF-2 lighting unit, but he did not actually see the accident.  This individual offered no personal knowledge regarding the extent of injuries.

Another service mate (T.F.) recalls hearing that the Veteran told him about the 1972 injury, wherein both sides of his body was "pretty banged up" especially his left knee and right hip.  The Veteran had also reported passing blood in his urine and having a splitting headache for a few days after the accident.  This witness "understood that the base hospital didn't do much for [the Veteran] except give some pain pills" and that there was "minimal" documentation of the incident.  This individual reported being stationed with the Veteran at Shaw AFB from 1973 to 1974, during which time the Veteran had talked about his accident.  He was aware of the Veteran's recurring hip and knee pain, but the Veteran had been turned away by the medical facility for obtaining treatment.  The Veteran's frustration with his medical treatment had been a factor in not enlisting for another term.  This witness also recalls that, a couple of years after service, the Veteran mentioned having repeated soreness in his knee and hip which occurred more often in winter.

The Veteran's brother also recalls hearing about the accident from the parents.  He worked with the Veteran between 1975 and 1977 wherein the Veteran would often report stiffness and aching of his hips and knees.  The Veteran was described as having a good work ethic and deserving of compensation for disability which has progressively worsened since 1972.

The Veteran's son has attested to the Veteran's good character, and his observation of the Veteran's orthopedic pain and headaches as far back as he could remember.

The Veteran has also submitted various treatise articles and arguments to help substantiate his claim.  One article discusses the difficulty in diagnosing an acetabular labrum tear (ALT).  Another article discusses that joint injury in young adults place them at risk for subsequent knee and hip osteoarthritis.  

Another article discusses that a blunt trauma to the kidneys may include a tear, cut or bruise to the organ, and could lead to internal bleeding due to organ rupture or blood vessel problems.  It is indicated that many blunt injuries to the kidneys are not immediately diagnosed, and may require blood tests, urine tests, and imaging tests.  Experiencing blood-tinged urine may be a secondary finding for a kidney injury although this finding could be present for other types of injuries also.  It is argued that these documents show that 90 percent of traumatic injuries to the kidneys involve blunt trauma rather than penetrating trauma.

As noted above, the first element of direct service connection requires medical evidence of a current disorder.  Here, current diagnoses have been established.  

Regarding the right knee claim, following a review of the claims file, the VHA physician, in the September 2012 medical opinion, determined that the Veteran has osteoarthritis of the right knee.  Knee arthralgia is also listed in the VAMC current diagnoses list.  

Regarding the left hip claim, at the February 2012 VA examination, the Veteran was diagnosed with degenerative joint disease of the left hip.  

Regarding the right hip claim, on VA examination in May 2006, the Veteran was diagnosed with osteoarthritis of the right hip.  In February 2012, the Veteran's private physician diagnosed him with femoral acetabular impingement of the right hip and labral tear of the right hip.  At the February 2012 VA examination, the Veteran was also diagnosed with degenerative joint disease of the right hip.  

Regarding the low back claim, a July 2007 VA magnetic resonance imaging (MRI) scan was interpreted as showing spondylosis of the lumbar spine.  At the March 2009 VA examination, the Veteran was diagnosed with degenerative joint disease and degenerative disc disease of the lumbar spine.

Regarding the renal claim, an October 2008 VA X-ray diagnosed the Veteran with unilateral renal atrophy.  At the March 2009 VA examination, the Veteran was diagnosed with renal insufficiency and atrophic right kidney.  In November 2009, the Veteran was also diagnosed by his private physician with chronic kidney disease.  

Regarding the TBI with headaches claim, the Veteran was diagnosed with headaches by the VA Medical Center (VAMC) in March 2006.  A May 2006 VA MRI of the brain found no lesions or masses.

Thus, the evidence of record establishes that the Veteran has current diagnoses of the disorders on appeal.  The Veteran has satisfied the first element of service connection.

As stated above, the second element of direct service connection requires medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease.  

The STRs do reflect one-time treatment for left knee abrasion due to trauma on July 5, 1972 - thus an event did occur.

As previously mentioned, the third element of direct service connection requires medical evidence of a nexus between the current disorder and the in-service disease or injury.  Here, the record does not show treatment for the claimed disabilities until many years after active service.  There are both positive and negative medical nexus opinions.  

Specifically, the Veteran was provided a VA joints examination in May 2006, but no medical nexus opinion was provided.

In March 2009, the Veteran was afforded another VA joints examination.  Following a review of the claims file and a physical examination of the Veteran, the VA examiner determined that the Veteran's right hip disorder was less likely as not associated with any injury in service.  The examiner reasoned that there was no evidence of injury, treatment, or evaluation for his right hip in service.  The examiner noted that there were no complaints related to the right hip until approximately 2006.  The examiner also concluded that the Veteran's current lumbar spine disorder was more likely due to age-acquired changes.  The examiner reasoned that there was no evidence of complaints of back pain or an injury to the back in service.  Instead, the examiner pointed out that the first noted visit of complaints of back pain was in May 2007.  The examiner found that the evidence of record did not show evidence of a chronic disorder related to the back or the right hip.

In March 2009, the Veteran was also afforded a VA genitourinary examination.  The VA examiner did not provide a medical opinion regarding direct service connection at this examination.  

A November 2009 from nephrologist Dr. A.W.B., states as follows:

[The Veteran] has chronic kidney disease, and high blood pressure.  He also has a history of significant trauma that occurred in June 1972.  He had a crush injury of the right hip, right knee, left knee and gross hematuria (blood in urine).

There is a high likelihood that [the Veteran's] chronic kidney disease and hypertension are related to this injury.  He has a small atrophic right kidney on ultrasound...

In an undated medical opinion, the Veteran's private physician, Dr. A.I.F., noted that the Veteran currently had chronic kidney disease and had a traumatic injury years ago to his right flank.  Dr. A.I.F. then opined that it is "not out of the realm of possibilities that the trauma had an adverse effect on the kidney function on the right side and may have increased his chances of developing chronic kidney disease."  Dr. A.I.F. did not state in his medical opinion if he reviewed the claims file or examined the Veteran prior to providing his medical opinion.

In February 2010, the Veteran was afforded another VA joints examination.  Following a review of the claims file and a physical examination of the Veteran, the VA examiner found the Veteran's current orthopedic disorders were "certainly less likely as not" due to any injury in the service.  The examiner found that these disorders were more likely age-related changes.  The examiner stated if the Veteran had a significant injury to any of the joints, the hips, or the knees, then the examiner would expect the Veteran to have significantly more degenerative changes thirty-five years after the injury.  Instead, the examiner found that the current findings are more consistent with age-related degenerative changes, as well as the Veteran's reported work history.  

In a February 2012 medical opinion, the Veteran's private physician, Dr. G.W.S., diagnosed the Veteran with femoral acetabular impingement of the right hip, which led to a labral tear, as shown on the MR-arthrogram in April 2009.  Dr. G.W.S. stated that labral tears due to femoral impingement are related both to the underlying structure or morphology of the hip joint and the activity to which the hip joint is exposed.  Labral tears due to femoral acetabular impingement can go undiagnosed for long periods of time.  Dr. G.W.S. determined that blunt trauma to a joint can lead to chondral injury.  The physician stated that this injury could show itself with symptoms soon after the blunt trauma or at a period of time later when there is deterioration of the Hyaline cartilage in the joint.  Dr. G.W.S. indicated that typically, if the joint was damaged by blunt trauma, then the symptoms would be apparent within one to two years.  The physician stated that, "There is not good evidence that a blunt trauma could lead to damage, injury and symptoms more than 10 to 20 years later."  

In July 2012, upon reviewing the claims folder, the Board referred the claims to a specialist for advisory medical opinions regarding the disorders on appeal.  These opinions were obtained in September 2012.  

Following a review of the claims file, the September 2012 VHA physician found that the cause of the Veteran's chronic kidney disease is more likely due to his chronic hypertension than any trauma occurring on July 5, 1972.  The physician reasoned that the Veteran was diagnosed with unilateral renal atrophy in addition to chronic kidney diseases.  The physician stated that the differential diagnosis for unilateral renal atrophy includes chronic ischemia, post-obstructive uropathy, renal hypoplasia, chronic subacapsular hematoma, or radiation.  

Regarding the TBI with headaches, the September 2012 VHA physician found that it was unlikely that the Veteran's current headaches were related to the trauma occurring on July 5, 1972.  The physician reasoned that the Veteran's headaches history began in December 2005.  The physician stated that if the Veteran did have a significant enough trauma to cause a TBI in service, then the onset of headaches would have been much closer to the traumatic event itself.

Regarding the Veteran's current orthopedic disorders, the September 2012 VHA physician found that it was unlikely that these disorders were related to the trauma occurring on July 5, 1972.  The physician reasoned that the Veteran had well-documented evidence that he had trauma to his left knee on July 5, 1972.  The physician stated that at the core of the joint disorders is the literature to suggest trauma to a joint at a young age increases the risk of osteoarthritis in adulthood.  The physician stated that he reviewed this medical literature and noted this correlation between trauma and subsequent osteoarthritis.  However, the physician found that the trauma cited in the articles was of a more severe nature than the Veteran suffered during his active military service.  Specifically, the articles referred to traumas in which the patient suffered significant internal derangement of the knee (tendon tears) or fractures involving the joints.  The fact that the Veteran was able to ambulate after the July 1972 in-service injury, and that there was no swelling/joint effusion documented, suggests, according to the physician, that the trauma suffered by the Veteran was not what was correlated with a later risk of developing osteoarthritis.  Thus, the VHA physician concluded that it is unlikely that the trauma suffered by the Veteran in July 1972 was the cause of his current joint and back problems.

The Board observes that the differing medical opinions appear to be based, in part, upon differing factual assumptions regarding the extent of injury, or injuries, that occurred on July 5, 1972.  That an accident occurred on July 5, 1972 is documented in the STRs.  The full details of that accident, however, are not available.  The Veteran and his son have undertaken an extensive effort to establish the severity of the July 5, 1972 injury by highlighting facts most favorable to the Veteran but, unfortunately, the Board is persuaded by review of the entire record that the Veteran's current account is not accurate or reliable.  In other words, the Veteran's current version of events is not credible.

The Board first starts with the available STRs.  A July 5, 1972 STR reflects that the Veteran arrived at the Kunsan Air Base (AB) "DISPENSARY' due to trauma with abrasions to a "knee."  There is room for ambiguity whether the right or left knee was referenced.  It was noted that the Veteran was seen by a doctor, and that no x-rays were necessary.  The Veteran's treatment consisted of Merthiolate and ace wrap.  There are no other notations.

The Veteran describes having extensive body bruising at the time of the July 5, 1972 clinic visitation.  The Board finds great significance in the absence of any reference in the July 5, 1972 STR or contemporaneous time period to any form of injury other than an abrasion.  

First, the Board notes that it has reviewed a one page STR which contains entries on the front side for visitations in January 1972, February 1972 and July 1972, and entries on the back side for visitations in August 1972 and September 1972.  Thus, the Board is confident that all STRs contemporaneous in time to the July 5, 1972 injury are associated with the record.  While it is claimed that there may be a missing accident or line of duty report in the SPRs, the Board finds no factual basis to conclude that STRs from Kunsan AB are incomplete.  Indeed, the Veteran has complained that his treatment was cursory and that he did not seek much further treatment due to frustration with the lack of care. 

Second, the July 5, 1972 STR only describes an "abrasion" treated with Merthiolate and ace wrap.  The Board observes that Merthiolate is an antiseptic for external use to prevent infection in minor cuts, scrapes and burns.  See http://www.merthiolate.net/en/merthiolate-tincture-antiseptic-tintura-50.html.  See generally Smith (Brady) v. Derwinski, 1 Vet. App. 235, 238 (1991) (Courts may take judicial notice of facts not subject to reasonable dispute).

Important for this case, the July 5, 1972 STR does not show that the Veteran was prescribed Darvon, which is a narcotic medication (see http://www.drugs.com/mtm/darvon.html) or that the Veteran was prescribed two weeks of light duty as currently claimed.  The July 5, 1972 contains no reference to pain or any physical observation of "extensive bruising."  All, or at least some, of these matters would be expected to be documented in the STRs if, in fact, they occurred.  See Fed.R.Evid. 830(7) (the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded).

Additionally, the entries in August 1972 and September 1972 do relate to urinary complaints.  More specifically, urethral discharge with burning on urination.  There was no complaint of passing blood in urine.  For these evaluations, laboratory testing confirmed gram-negative intracellular diplococci (GNIED) requiring penicillin treatment and a public health interview.  There is no suggestion of record that these STRs entries bear any relationship to a claimed blunt trauma injury to the kidneys.  See generally http://www.cdc.gov/std/gonorrhea/lab/ngon.htm.  

The Board next looks at the STRs for the Veteran's remaining 3 years of active duty service which are absent any reference to any of the disabilities being claimed, including the service-connected left knee.  At his separation examination, the Veteran described his overall health as "Good" and specifically denied any history of abnormal blood pressure, blood in urine, arthritis, rheumatism, bone, joint or other deformity, frequent or severe headache, a head injury, lameness, recurrent back pain, or trick or locked knee.  The separation examination, which included urinalysis testing, found no chronic orthopedic, genitourinary, vascular or neurologic abnormalities.

Overall, the military separation examination tends to weigh against the Veteran's current claim of incurring an extensive bodily on July 5, 1972 following by chronic disability of TBI with headaches, right hip pain and right knee pain.  The lay information on this examination includes a specific denial of chronic complaints, a specific denial of head injury and blood in urine, and medical examination findings which showed no chronic abnormalities.  The Veteran's denial of a head injury, blood in urine, and frequent or severe headaches directly contradict his current assertions - thus, both versions of events cannot be true.

Thus, the STRs themselves tend to weigh heavily against a severe injury to the right knee, both hips, the kidneys and the head.

The available post-service medical records do not report complaints of, or treatment for, any of these disorders for more than three decades following the Veteran's service discharge.  Specifically, a November 2005 VA clinical record documents the Veteran's complaint of right knee pain.  At a VA treatment visit in December 2005, the Veteran sought treatment for his bilateral hip pain and a report of "new headache onset" - which is not consistent with the current allegation of chronic headaches since service.  In February 2007, the Veteran was first seen by the VAMC for complaints of kidney problems.  A May 2007 VAMC record documents the Veteran's initial complaints of low back pain.  Again, the Veteran's active duty ended in 1975.  

Overall, the lengthy period between service discharge and the first documented treatment for any disorder tends to weigh against the current allegations of chronicity.  See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000).

The record also includes a September 2012 VHA physician opinion that the Veteran's current allegation of a TBI injury is not consistent with the onset of a headache disorder many years after service.  The VHA examiner also found that the Veteran's ability to ambulate after the accident and the absence of documented joint swelling/effusion is not consistent with an accident of the severity claimed by the Veteran.

Taking all of this evidence into consideration (rather than any single factor), the Veteran's current allegation that the July 5, 1972 injury resulted in extensive body bruising, a TBI with headaches, and a blunt trauma to the kidney resulting in passing of blood is not deemed credible as it is entirely inconsistent with his own statements in service and the accompanying medical record.

Here, the record discloses contradictory reports of medical history by the Veteran with some version which must be untrue.  The Board places greater probative weight to the Veteran's description of symptomatology to the military examiners in service rather than his current recollections of an event more than 4 decades ago made in the context of seeking compensation benefits.  See LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care).  Cf. Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest may affect the credibility of testimony); Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (prior inconsistent statements may be relevant in evaluating credibility of testimony).  

Similarly, the Board finds that the Veteran's December 2005 description of a "new onset" headache is more consistent with the evidentiary record, including the Veteran's specific denial of a head injury and headaches upon service separation.

Given this underlying factual finding, the Board next finds that the negative evidence outweighs the positive on the issue of direct service connection.  It is to be noted that the Board is not free to substitute its own judgment for as such a medical expert.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).  However, the Board is required to assess the credibility and weight to be given to the evidence.  See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).  As the VA physicians provided a detailed explanation as to why the Veteran's current disorders are not consistent with the July 1972 injury documented in the STRs, the Board finds the probative value of the VA medical opinions are greater than the cursory conclusions of the Veteran's private physicians.  The Board is not persuaded by the private doctors' statements because they are based upon the Veteran's factual assertion of a severe "crush" injury on July 5, 1972 which the Board has rejected as not credible.  

Clearly, all of the private medical opinions were based solely on the Veteran's reported in-service injury.  In reviewing the opinions, it appears as though the Veteran has not accurately reported his medical history to his private physicians, as he described the in-service injury to his private physicians as much more severe than is actually documented in his STRS and found by the Board.  While the Veteran may be competent to report his history of symptoms, it appears that in these private medical opinions, his history was not accurately reflected.  As such, the Board finds the private physicians' statements to be of low probative value.  See also Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the probative value of an opinion may be reduced if based on an inaccurate factual predicate).
	
Furthermore, with regard to the undated private statement, in which the examiner opined that it is "not out of the realm of possibilities," the Board finds that this physician's statement is not definitive regarding the causal connection between the Veteran's claimed disorders and his active military service.  There are a line of precedent cases discussing the probative value of opinions like this that are equivocal, which essentially state that it is possible the disorders at issue are attributable to the Veteran's military service.  See, e.g., Tirpak v. Derwinski, 2 Vet. App. 609 (1992); Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Winsett v. West, 11 Vet. App. 420, 424 (1998).  These cases make clear that, while an absolutely accurate determination of etiology is not a condition precedent to granting service connection, nor is definite etiology or obvious etiology, a doctor's opinion phrased in terms tantamount to "may" or "could" be related to service is an insufficient basis for an award of service connection because this is for all intents and purposes just like saying the disorders in question just as well "may or may not"" be related to the military service.  Obert v. Brown, 5 Vet. App. 30 (1993).  See, too, Bloom v. West, 13 Vet. App. 185, 187 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty).

In contrast, the VA examiners and the VHA physician accurately and thoroughly characterized the evidence of record.  The VA examiners also conducted a comprehensive examination of the Veteran, and these examinations were reviewed by the VHA physician prior to forming his medical opinion.  The VA physicians' reports of the Veteran's medical history and their clinical findings are consistent with the entire body of medical evidence of record.  There is no basis on which to find that the VA medical opinions are incomplete or insufficient in any way.  The February 2012 private medical opinion also appears to support the VA examiner's findings, in opining that symptoms from a blunt trauma (such as the alleged in-service severe injury) would not typically appear 10 to 20 years later.

Thus, as the evidence is not in equipoise, direct service connection is not warranted for the disorders on appeal.  

The Veteran also seeks service connection for the orthopedic disorders on appeal, as secondary to his already service-connected left knee disability.

In this regard, the only nexus opinions of record on the issue of secondary service connection are negative.  

Specifically, in March 2009, the Veteran was afforded a VA genitourinary examination.  Following a review of the claims file and a physical examination of the Veteran, the VA examiner determined that the Veteran's current renal insufficiency and atrophic right kidney are not due to his service-connected left knee disability.  The examiner reasoned that the Veteran's atrophic kidney was a loss of renal parenchyma, which has multiple causes, to include obstruction, infection, reflux nephropathy, chronic intrinsic renal disease, and ischemia.  The examiner stated that an atrophic kidney can also cause renal insufficiency.

In March 2009, the Veteran was also afforded a VA joints examination.  Following a review of the claims file and a physical examination of the Veteran, the VA examiner concluded that the Veteran's current right hip disorder and lumbar spine disorder are less likely as not associated with his service-connected left knee disability.  The examiner reasoned that the Veteran's service-connected left knee disability was "very mild."  The examiner also indicated that there was no evidence of complaints of back or hip pain or an injury to the back or hip in service.  Instead, the examiner pointed out that the first noted visit of complaints of back pain was in May 2007.  The examiner stated that the Veteran's low back disorder was more likely age-acquired changes.

On a VA joints examination in February 2010, the VA examiner, following a physical examination of the Veteran and a review of the claims file, found the Veteran's current right knee and left hip disorders are not secondary to the service-connected left knee disability.  Instead, the examiner found that these disorders were more likely age-related changes.  The examiner stated if the Veteran had a significant injury to any of the joints, the hips, or the knees, then the examiner would expect the Veteran to have significantly more degenerative changes thirty-five years after the injury.  Instead, the examiner found that the current findings are more consistent with age-related degenerative changes, as well as the Veteran's work history.  

Similarly, on a VA joints examination in February 2012, the VA examiner, following a physical examination of the Veteran and a review of the claims file, determined that the Veteran's current orthopedic disorders are less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected left knee disability.  The examiner reasoned that the Veteran's current symptoms from his service-connected left knee disability are not consistent with patellofemoral syndrome (PFS), as the X-ray of the left knee was normal and the physical examination of the left knee showed a normal tracking patella.  However, the examiner stated that even if the Veteran was symptomatic for PFS in his left knee, his past history from his records shows that the left knee symptoms have been mild.  The examiner determined that PFS in the left knee would not contribute to hip, opposing knee, or spine problems.  Further, the examiner opined that the Veteran's current bilateral hip disorder and lumbar spine disorder were more consistent with aging than from the service-connected left knee disability.  Therefore, in summary, the examiner concluded that the Veteran's current lumbar spine disorder, bilateral hip disorder, and right knee disorder were not secondary to his service-connected left knee disability.

In a February 2012 medical opinion, the Veteran's private physician, Dr. G.W.S., provided an alternate etiology for the Veteran's current left hip disability and low back disorder.  Specifically, the physician found that the Veteran had right hip pain due to a labral tear with femoral acetabular impingement.  Dr. G.W.S. stated that this type of disorder usually results in altered gait, which can put stress on other joints and cause pain in the lower back and opposite hip.

The VA examiners clearly reviewed the Veteran's STRs and the other evidence in the claims folder.  They provided medical opinions that are supported by and consistent with the evidence of record.  They provided an alternative theory to address the etiology of the current disorders - namely, aging.  The Veteran's private physician also provided an alternative theory.  There is no positive evidence to the contrary of these medical opinions in the claims file.  The treatment records do not provide contrary evidence.  As such, service connection on a secondary basis for the orthopedic disorders on appeal is not warranted.

Regarding all of the disorders on appeal, the Veteran reports continuous symptomatology since his active military service.  However, his current contentions contradict his report of medical history upon separation from service and are not consistent with his medical records which first show treatment for his disorders many decades after service.  Additionally, his current allegation of chronic headaches since service directly contradicts his December 2005 report to a VA examiner of having a "new headache onset."

As stated above, the earliest pertinent post-service medical evidence associated with the claims file is dated from November 2005, more than 30 years after the Veteran's military separation in 1975.  Further, the STRs do not show that the Veteran developed a chronic disorder during his active military service.  The STRs do not document any complaints of or treatment for the disorders on appeal.  Although the Veteran's reports that the July 1972 injury was more severe than described in the STRs, there is no evidence in the STRs that any injuries suffered, besides the documented left knee injury, did not resolve prior to his military discharge.  The Veteran specifically denied a history of swollen or painful joints, frequent or severe headache, head injury, blood in urine, arthritis, rheumatism, bursitis, and recurrent back pain on his separation examination.   The evidence of record does not document continuity of symptomatology during and since the Veteran's active military service.  Thus, the Board finds that the medical evidence does not establish a "chronic disorder."  38 C.F.R. § 3.303; see Walker, 708 F.3d at 1331.  His testimony to the contrary is not credible, and the Veteran's service connection claims cannot be granted on this theory of entitlement.

Additionally, the Board finds that the Veteran is not entitled to presumptive service connection for the disorders on appeal.  As stated above, the earliest post-service medical treatment records are dated from 2005, and the Veteran was separated from the active duty in 1975.  No diagnosis of arthritis (i.e., degenerative joint disease), nephritis, calculi of the kidney, brain hemorrhage, or brain thrombosis was made within one year of the Veteran's military discharge.  Thus, the presumption for service connection for chronic diseases does not apply.  38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a).

In reaching this decision, the Board has considered the Veteran's arguments in support of his claims, as well as the articles submitted by him and the statements from his friends and family.  Here, the Veteran has presented an extensive briefing wherein he has identified all elements of a service connection claim, and provided medical opinions as well as treatise materials discussing the causes of hypertension, renal disease, and complications of kidney trauma.  He has cited facts such as 90 percent of traumatic injuries to kidneys result from blunt trauma.  

The Board acknowledges that the Veteran, his family, and his friends are competent, even as lay people, to attest to factual matters of which they have first-hand knowledge, e.g., an injury or current symptoms.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  However, none of the witnesses are shown to have personally witnessed the July 5, 1972 injury and, thus, have any personal knowledge of how the event occurred other than through the Veteran's own reports.  On the matter of accident circumstances, the probative value of these witnesses is limited to corroborating what the Veteran has said.

The Veteran has argued various circumstances to explain the lack of documentation regarding the severity of injury, such as distracted or uninterested military physicians, the lack of advanced imaging and testing technologies in 1972, etc.  The Board need not discuss every interpretation of extraneous facts and theories by the Veteran and his son in deciding this case.  A key element in this case is the actual circumstances of injury in July 1972.  As held above, the Veteran's overall credibility has been impeached with clearly contradictory statements on material matters of fact, and the Board has necessarily decided which statements were more credible than the others.  

The Board acknowledges the Veteran's argument that military examiners wanted to delay his discharge for two weeks to evaluate the extent of disabilities.  Like other matters, this event is not documented.  Yet, the Board has before it a November 1974 examination wherein the Veteran certified that he had no history of head injury, headaches, blood in urine, etc.  To accept the current version, the Board would have to find that, for an unknown reason, military examiners decided not to report the reasons why a further medical evaluation was deemed warranted.  Unfortunately, given the numerous contradictions and consistencies, the Board has generally found greater probative weight in documentary evidence generated contemporaneous in time to the injury in question rather than the current recollections.

Also, to the extent any witness can be deemed to have personal knowledge of symptoms experienced in service or contemporaneous thereto, the Board places greater probative weight to the Veteran's own statements made to military examiners during service as being more accurate than recollection of events many decades ago that contradict the Veteran's own assertions in service.

It is further important to point out that the Board does not find that the lay statements lack credibility merely because they are unaccompanied by contemporaneous medical evidence.  See Davidson, 581 F.3d at 1313, quoting Buchanan, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.").  Rather, the lay statements are found to be incredible because they are inconsistent with numerous pieces of evidence of record separately discussed above.  

Finally, the Board has carefully reviewed the treatise material and witness statements regarding the potential etiology of the right knee, bilateral hip, renal disorder and headache disorder.  The overall value of this evidence regarding a nexus in this case is greatly outweighed by the VA and VHA opinions, as these opinions were provided by physicians with much greater expertise and training than the witnesses and were based upon the specific and accurate facts of this case.

For the reasons set forth above, the Board finds that the lay statements that the Veteran's symptoms have been present since his active military service are not credible.  Therefore, these statements do not warrant a grant of service connection or a determination that further development of the medical evidence is required.  All other evidence of record, aside from the lay statements in support of these claims, is unfavorable to the service connection claims.  

Regarding secondary service connection, although laypersons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, whether the disorders on appeal were caused or aggravated by the service-connected left knee disability, these issues fall outside the realm of common knowledge of a layperson.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (laypersons not competent to diagnose cancer).  As a layperson, it is not shown that the Veteran, or his friends and family, possesses the medical expertise to provide such an opinion.  In any event, the probative value of these lay opinions are greatly outweighed by the VA and VHA examiners, who have greater expertise and training to speak to the etiology of the medical disorders at issue.  

The Board also notes that the only medical opinions of record addressing the claimed secondary relationship are negative.  No competent medical opinions linking the disorders on appeal to the Veteran's service-connected left knee disability have been presented.  The VA examiners considered the lay assertions in forming their medical opinions, but ultimately found that the Veteran's current disorders were not related to his service-connected left knee disability.  Thus, as previously stated, the medical evidence of record is only against the Veteran's claims.  

The Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue.  The preponderance of the evidence, however, is against the Veteran's claims, and thus that doctrine is not applicable.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The Veteran's claims of entitlement to service connection for a right hip disorder, left hip disorder, low back disorder, TBI with headaches, kidney disorder, and right knee disorder are denied.

III.  General Regulations and Statutes for Increased Rating Claims

Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity in civil occupations.  See 38 U.S.C.A. § 1155.  Separate DCs identify the various disabilities.  The assignment of a particular DC is dependent on the facts of a particular case.  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One DC may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology.  In reviewing the claim for a higher rating, the Board must consider which DC or codes are most appropriate for application in the Veteran's case and provide an explanation for the conclusion.  See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995).

The Board observes that unappealed rating decisions granted service connection for the Veteran's bilateral hearing loss and left knee disability.  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.  Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1  Vet. App. 282 (1991).  While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings.  Where an increase in the disability rating is at issue, the "present level" of the Veteran's disability is the primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, where VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made.  Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

A.  Left Knee Disability 

The Veteran is currently in receipt of a 10 percent evaluation for his service-connected left knee disability under DC 5260.  

Under DC 5260, a 10 percent rating requires flexion of the knee limited to 45 degrees.  A 20 percent rating is warranted for flexion of the knee limited to 30 degrees.  38 C.F.R. § 4.71a.  

It is also possible to receive separate ratings for limitation of flexion (DC 5260) and limitation of extension (DC 5261) for a disability of the same joint.  See VAOPGCPREC 9-2004 (Sept. 17, 2004).

Under DC 5261, a 10 percent rating requires extension limited to at least 10 degrees.  A 20 percent rating requires extension limited to 15 degrees.  38 C.F.R. 
§ 4.71a, DC 5261 (2012).  

For comparison, normal range of motion in the knee is from 0 degrees of extension to 140 degrees of flexion.  See 38 C.F.R. § 4.71, Plate II (2012).

In VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997), VA's General Counsel held that a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003-5010 (for the arthritis of the knee) and DC 5257 (for the instability of the knee) based on additional disability.  38 C.F.R. § 4.71a, DCs 5003, 5010, 5257 (2012).  It was specified that, for a knee disability already rated under DC 5257, a claimant would have additional disability justifying a separate rating if there is limitation of motion under DC 5260 (flexion) or DC 5261 (extension).  Hence, if a claimant has a disability rating under DC 5257 for instability of the knee and there is also X-ray evidence of arthritis and resulting limitation of motion, a separate rating is available under DC 5003-5010.  38 C.F.R. § 4.71a.

Under 38 C.F.R. § 4.71a, DC 5257, a 10 percent rating is warranted for recurrent subluxation or lateral instability which is productive of slight impairment of the knee.  A 20 percent rating is warranted for recurrent subluxation or lateral instability that is productive of moderate impairment of the knee.  Id.  The words "slight," "moderate" and "severe", as used in the various diagnostic codes, are not defined in VA's Rating Schedule.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just."  38 C.F.R. § 4.6.  In other words, the use of these descriptive terms is not altogether dispositive of the rating that should be assigned, but it is nonetheless probative evidence to be considered in making this important determination.  38 C.F.R. §§ 4.2, 4.6.

Further, a 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.

When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable DC, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45.  DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse.  A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran.  38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997).  If the Veteran is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable.  Johnston, 10 Vet. App. at 80.
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 (2012).

In applying the above law to the facts of the case, the Board finds that the Veteran is not entitled to a higher disability rating for his service-connected left knee disability.  Id.  The Board notes that measurements taken at the VA examinations, which included consideration of the Veteran's pain following repetitive use, did not meet the criteria for the 20 percent rating under DC 5260.  38 C.F.R. § 4.71a.  At the March 2009 and February 2010 VA examinations, the Veteran's flexion of the left knee was limited to 130 degrees, even when considering his pain.  At the February 2012 VA examination, the Veteran's flexion of the left knee was limited to 140 degrees, even when considering his pain. The VA and private treatment records do not provide contrary results.  

As noted above, a claimant's painful motion may add to the actual limitation of motion so as to warrant a rating under DC 5260 or DC 5261.  VAOPGCPREC 9-98.  However, the evidence of record does not establish that the Veteran's flexion of the left knee is limited to 30 degrees, to warrant a higher disability rating of 20 percent, even when considering functional impairment caused by pain.  38 C.F.R. § 4.71a, DC 5260.  Therefore, the Veteran is not entitled to a higher 20 percent disability rating for his service-connected left knee disability under DC 5260.  38 C.F.R. § 4.71a.  

The evidence of record also does not establish that the Veteran should be awarded a separate disability rating for his limitation of extension of the left knee.  38 C.F.R. § 4.71a, DC 5261.  The evidence establishes that the Veteran does not have a noncompensable or compensable disability rating under the limitation of extension code (DC 5260).  38 C.F.R. § 4.71a.  At the March 2009, February 2010, and February 2012 VA examinations, the Veteran's extension of the left knee was limited to 0 degrees, even when considering his pain.  The VA and private treatment records do not provide contrary results.  Thus, the Veteran is not entitled to a separate disability rating for his limitation of extension of the left knee.  38 C.F.R. § 4.71a, DC 5261.  

Regarding a separate disability rating for instability or subluxation of the left knee, during the August 2011 Board hearing, the Veteran's son claimed that the Veteran's left knee stability had worsened recently, to the point that he needs a knee brace and cane to aid in stability.  However, in this regard, the March 2009 and February 2010 VA examiners found the Veteran's left knee to be stable to stress testing.  At the February 2010 VA examination, the Veteran reported that he did not use braces or any aids.  At the February 2012 VA examination, although the examiner noted the Veteran's use of assistive devices, the examiner ultimately found that the stability tests of the left knee were normal.  The examiner found that the Veteran did not have instability or subluxation of the left knee.  The VA and private treatment records do not provide contrary evidence.  

Overall, the Board finds that the probative weight of the actual clinical findings by the VA examiners greatly outweighs the lay observations describing left knee instability, as the VA examiners possess greater training than the lay witnesses, and employ specific knee maneuvers to more accurately test for instability or subluxation.  Therefore, the Veteran is not entitled to a separate disability rating for instability of the left knee under 38 C.F.R. § 4.71a, DC 5257.

The remainder of the DCs pertaining to the knee and leg also do not justify a disability rating in excess of 10 percent for the service-connected left knee disability.  Taking the remaining codes in numerical order, DC 5256 is not applicable because there is no ankylosis of the Veteran's knee.  The existence of ankylosis is not supported by the Veteran's ranges of motion.  DC 5258 is applicable where there is cartilage, semilunar, dislocated, with frequent episodes of "locking" pain and effusion into the joint.  At the VA examinations, the VA examiners found that the Veteran's left knee did not have any locking or effusion episodes.  DC 5262 (describing malunion or nonunion) has also not been raised by the aforementioned medical evidence, as there were no structural abnormalities of the Veteran's left knee noted at the VA examinations or in the associated X-rays.  Thus, the Veteran is not entitled to a higher disability rating of 20 percent under DC 5258 or DC 5262.  Additionally, the Veteran is already in receipt of the maximum schedular rating of 10 percent under DC 5259 and DC 5263.  Thus, these remaining DCs do not justify a disability rating in excess of 10 percent for the service-connected osteoarthritis of the left knee.  38 C.F.R. § 4.71a.

The Board also finds that a disability rating higher than 10 percent is not warranted on the basis of functional loss due to the other factors discussed in DeLuca - namely, weakened movement, excess fatigability, or incoordination.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. at 204-08.  It bears reiterating that the Veteran does not have sufficient limitation of flexion or extension in his left knee, even when considering his pain, to warrant even the minimum compensable rating of 10 percent under DCs 5260 or 5261.  Thus, his current 10 percent rating for his service-connected left knee disability under DC 5260 is the means of compensating him for the additional impairment - including additional limitation of motion, from his chronic pain in this knee.  Thus, he is already receiving the appropriate amount of compensation for the pain and other DeLuca factors.

The Board notes that in adjudicating a claim, the competence and credibility of the Veteran and his witnesses must be considered.  See Buchanan, 451 F.3d at 1331; Washington, 19 Vet. App. at 368-69.  The Board acknowledges that the Veteran and his witnesses are competent to give evidence about what he/she observes or experiences - e.g., pain, limping, etc.  The witness beliefs that the Veteran's left knee disability is worse than the assigned rating, however, is outweighed by the competent and credible medical examinations that evaluated the true extent of impairment based on objective data coupled with the lay complaints.  The VA examiners have the training and expertise necessary to administer the appropriate tests for a determination on the type and degree of the impairment associated with the Veteran's complaints.  For these reasons, greater evidentiary weight is placed on the physical examination findings than the Veteran's lay statements.

The Board has also considered whether staged ratings are appropriate in this case.  See Hart, 21 Vet. App. at 505; Francisco, 7 Vet. App. 55 (1994).  However, at no time during the relevant appeal period has the service-connected left knee disability more nearly met or nearly approximated the criteria for a higher disability rating.  Accordingly, staged ratings are not for application in the instant case.

In sum, the preponderance of the evidence is against the assignment of a rating in excess of 10 percent for the service-connected left knee disability at any time during the appeal period.  Thus, the claim is denied.  38 U.S.C.A. § 5107; 38 C.F.R. 
§ 3.102; see Gilbert, 1 Vet. App. at 49. 

C.  Extraschedular and TDIU Consideration

The above determination is based on application of provisions of the VA's Schedule for Rating Disabilities.  38 C.F.R. Part 4 (2012).  However, the regulations also provide for exceptional cases involving compensation.  Pursuant to § 3.321(b)(1), the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards."  38 C.F.R. 
§ 3.321(b)(1). 

The question of an extraschedular rating is a component of a claim for an increased rating.  See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008). 

If the evidence raises the question of entitlement to an extraschedular rating, 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.  Therefore, initially, there must be a comparison between the level of severity and symptomatology of a Veteran's service-connected disability with the established criteria found in the rating schedule for that disability.  Thun v. Peake, 22 Vet. App. 111 (2008). 

If the criteria reasonably describe the claimant's disability level and symptomatology, then a Veteran's disability picture is contemplated by the rating schedule.  The assigned schedular evaluation is, therefore, adequate, and no referral is required.  In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). 

Here, because the schedular ratings for the Veteran's left knee disability fully address his symptoms, referral to the Under Secretary for Benefits or the Director of Compensation and Pension Service for consideration of an extraschedular evaluation is not warranted.  Here the schedular criteria provide for ratings based painful motion, limitation of motion, instability, subluxation, malunion, nonunion, dislocated semi-lunar cartilage, etc.  The Veteran does not report any symptoms which cannot be evaluated under the schedular criteria.

Finally, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a TDIU is considered part and parcel of an increased rating claim when the issue of unemployability is raised by the record.  In this case, the issue of unemployability is not raised by the record.  The evidence of record does not establish, and the Veteran does not contend, that his service-connected left knee disability prevents him from being employed.  The Veteran's SSA records establish that he is currently unable to work due to heart and psychiatric disorders, and not his left knee.  Therefore, the issue of entitlement to TDIU has not been reasonably raised. 


ORDER

Entitlement to service connection for a right knee disorder, including secondary to service-connected patellofemoral syndrome of the left knee, is denied. 

Entitlement to service connection for a left hip disorder, including secondary to service-connected patellofemoral syndrome of the left knee, is denied. 

Entitlement to service connection for a right hip disorder, including secondary to service-connected patellofemoral syndrome of the left knee, is denied. 

Entitlement to service connection for a low back disorder, including secondary to service-connected patellofemoral syndrome of the left knee, is denied. 

Entitlement to service connection for a kidney disorder, including right renal atrophy with renal insufficiency, is denied. 

Entitlement to service connection for traumatic brain injury, including headaches, is denied. 

Entitlement to an evaluation in excess of 10 percent for patellofemoral syndrome of the left knee is denied. 


REMAND

The Veteran has provided to VA the report of a private February 2012 audiometric evaluation.  This report includes word recognition testing scores, but does not disclose the word list used.  VA specifically tests speech recognition using the Maryland CNC Word Recognition List.  38 C.F.R. § 4.85(a).  

At this time, the Board must seek clarification of the word list used by the private examiner.  See Savage v. Shinseki, 24 Vet. App. 259 (2011) (when a private examination report is "unclear" or "not suitable for rating purposes," VA has a duty to seek clarification or explain why additional development of clarification is not needed).

On remand, the Veteran should be afforded additional VA examination to determine the current nature and severity of bilateral hearing loss.

Accordingly, the case is REMANDED for the following action:

1.  Contact "Today's Hearing" and seek clarification of the word list used to evaluate the Veteran's speech recognition ability in February 2012.

2.  Upon completion of the above, schedule the Veteran for appropriate examination to determine the current severity of his bilateral hearing loss.

3.  Thereafter, readjudicate the claim.  If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and an appropriate period of time to respond.

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).




______________________________________________
T. MAINELLI
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs