Citation Nr: 1323505 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 08-15 160 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a previously denied claim for service connection for arthritis of the neck and shoulders secondary to in-service exposure to ionizing radiation. 2. Whether new and material evidence has been received sufficient to reopen a previously denied claim for service connection for arthritis of the back secondary to in-service exposure to ionizing radiation and/or service-connected residuals, right ankle fracture. 3. Entitlement to service connection for hypertension. 4. Entitlement to service connection for a bilateral knee condition, to include as secondary to service-connected residuals, right ankle fracture. 5. Entitlement to an evaluation in excess of 10 percent for residuals, right ankle fracture, prior to January 11, 2012, and in excess of 20 percent from January 11, 2012. 6. Entitlement to an initial compensable evaluation for residuals of basal cell carcinoma (claimed as skin cancer of lip, nose, neck, and cheek). 7. Entitlement to an effective date earlier than January 14, 1955 for the grant of service connection for residuals, right ankle fracture, and earlier than June 3, 1992 for a 10 percent evaluation for residuals, right ankle fracture. 8. Entitlement to an effective date earlier than January 11, 2012 for the assignment of a 20 percent evaluation for residuals, right ankle fracture. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R.N. Poulson, Counsel INTRODUCTION The Veteran served on active duty from January 1953 to January 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA). In April 2007, the Regional Office (RO) in Jackson, Mississippi granted service connection for residuals of basal cell carcinoma and assigned a noncompensable evaluation from May 8, 2002, and reopened a previously denied claim for service connection for arthritis of the back, neck, and shoulders and denied the claim on the merits. In March 2008, the RO in Waco, Texas denied entitlement to an earlier effective date for service connection of residuals, right ankle fracture. In the September 2008 statement of the case (SOC), the RO characterized the issue to include entitlement to an earlier effective date for the 10 percent evaluation of residuals, right ankle fracture. In September 2009, the RO in Waco, Texas (1) denied service connection for hypertension, right and left knee conditions, and a low back condition, and (2) continued a 10 percent evaluation for residuals, right ankle fracture. In August 2012, the RO increased the right ankle evaluation to 20 percent, effective January 11, 2012. As this increased rating does not constitute a full grant of all benefits possible, and as the Veteran has not withdrawn his claim, the claim is still active. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Irrespective of the RO's action in April 2007, the Board must decide whether new and material evidence sufficient to reopen the claim of entitlement to service connection for arthritis of the back, neck, and shoulders has been received prior to considering the merits of that underlying issue. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Board has bifurcated and recharacterized this issue as noted on the title page in light of Barnett and Clemons v. Shinseki, 23 Vet. App. 1 (2009), in which the United States Court of Appeals for Veterans Claims (Court) held that the scope of a claim pursued by a claimant includes any diagnosis that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Furthermore, the Board notes that the RO developed and adjudicated the reopened back claim and the claim for service connection for a low back condition separately. However, the Board finds that these claims are one and the same. The Board must discuss all theories of entitlement raised by the Veteran or by the evidence of record. Robinson v. Mansfield, 21 Vet. App. 545 (2008). Accordingly, the bilateral knee claim has been recharacterized to reflect the theory of secondary service connection. The earlier effective date issue has been recharacterized to better reflect the procedural history and the Veteran's contentions. In April 2013, the Veteran testified at a Travel Board hearing before the undersigned Acting Veterans Law Judge (VLJ). During the hearing, the Veteran submitted additional evidence along with a waiver of initial RO consideration. A transcript of the hearing is associated with the claims folder. At the beginning of the appeal, the Veteran was represented by the Disabled American Veterans (DAV). In a March 2012 VA Form 21-22, the Veteran appointed the Texas Veterans Commission (TVC) as his representative, thereby revoking the earlier power of attorney. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The claims of entitlement to service connection for a bilateral knee condition; entitlement to an initial compensable evaluation for residuals of basal cell carcinoma; entitlement to an effective date earlier than January 11, 2012 for the assignment of a 20 percent evaluation for residuals, right ankle fracture, and the reopened claims of entitlement to service connection for arthritis of the back, neck, and shoulders, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. At the April 2012 hearing, the Veteran expressed his desire to withdraw from appellate review the issue of entitlement to service connection for hypertension. A written transcription of the Veteran's testimony is of record. 2. In an unappealed August 1998 rating decision, the RO denied service connection for arthritis of the back, neck, and shoulders. 3. Evidence received after the August 1998 denial of service connection for arthritis relates to unestablished facts necessary to substantiate the arthritis issues and raises a reasonable possibility of substantiating those underlying claims. 4. In a March 1955 rating decision, the RO granted service connection for residuals, right ankle fracture, effective January 14, 1955, and assigned a 10 percent evaluation. The Veteran did not file a notice of disagreement (NOD) with the effective date; the March 1955 decision is now final. (In a March 1960 rating decision, the RO reduced the evaluation to zero percent, effective May 15, 1960). 5. In a September 1992 rating decision, the RO increased the evaluation for the right ankle disability to 10 percent, effective June 3, 1992. The Veteran did not file an NOD with the effective date; the September 1992 decision is now final. 6. Prior to January 11, 2012, the Veteran's right ankle disability was manifested by tenderness, pain, and objective evidence of no more than moderate limitation of motion. There is no evidence of ankylosis. 7. Since January 11, 2012, the Veteran's right ankle disability has been manifested by pain, subjective complaints of instability, and objective evidence of no more than marked limitation of motion. There is no evidence of ankylosis. CONCLUSIONS OF LAW 1. The criteria for the withdrawal of a substantive appeal with respect to the issue of entitlement to service connection for hypertension have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2012). 2. The RO's August 1998 denial of service connection for arthritis is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103 (2012). 3. Evidence received since the final August 1998 decision is new and material, and the claim for service connection for arthritis of the back is reopened. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.156, 20.1103 (2012). 4. Evidence received since the final August 1998 decision is new and material, and the claim for service connection for arthritis of the neck and shoulders is reopened. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.156, 20.1103 (2012). 5. The Veteran's November 2007 claim of entitlement to an earlier effective date for the grant of service connection and for a 10 percent evaluation for residuals, right ankle fracture, was not timely filed and must be dismissed. 38 U.S.C.A. § 7105(a) (West 2002 & Supp. 2012); 38 C.F.R. § 20.302(a) (2012); Rudd v. Nicholson, 20 Vet. App. 296 (2006). 6. The criteria for a disability evaluation greater than 10 percent for residuals, right ankle fracture, prior to January 11, 2012, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1-4.7, 4.10, 4.40-4.45, 4.71a, Diagnostic Code (DC) 5271 (2012). 7. The criteria for a disability evaluation greater than 20 percent for residuals, right ankle fracture, from January 11, 2012, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1-4.7, 4.10, 4.40-4.45, 4.71a, DC 5271 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawal A veteran may withdraw his or her appeal in writing at any time before the Board promulgates a final decision. 38 C.F.R. § 20.204 (2012). When a veteran does so, the withdrawal effectively creates a situation in which an allegation of error of fact or law no longer exists. In such an instance, the Board does not have jurisdiction to review the appeal, and a dismissal is then appropriate. 38 U.S.C.A. § 7105(d) (West 2002); 38 C.F.R. §§ 20.101, 20.202 (2012). At the April 2012 hearing, the Veteran expressed his desire to withdraw from appellate review the issue of entitlement to service connection for hypertension. A written transcription of the Veteran's testimony is of record. In view of the Veteran's expressed desires, the Board concludes that further action with regard to this issue is not appropriate. 38 U.S.C.A. § 7105(d) (West 2002); 38 C.F.R. § 20.204 (2012). The Board does not have jurisdiction over this withdrawn claim and, as such, must dismiss the appeal of this issue. 38 U.S.C.A. § 7105(d) (West 2002); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2012). II. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) clarified VA's duty to notify in the context of claims to reopen. With respect to such claims, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. Regarding the new and material evidence issues, the Board has considered the legislation regarding VA's duty to notify and to assist claimants but finds that, given the favorable action taken herein with regard to the issues of whether new and material evidence has been received sufficient to reopen the previously denied claims for service connection for arthritis, no further discussion of these VCAA requirements is required with respect to these matters. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. Where, as here with the Veteran's disagreement with the assignment of an initial rating for his service-connected basal cell carcinoma and the effective date for his service-connected right ankle disability, those claims have been substantiated. No additional VCAA notice is required with respect to these downstream issues. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). With regard to claim for an increased disability rating for the service-connected residuals, right ankle fracture, the law requires VA to notify the claimant that, to substantiate a claim, the claimant was must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, 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. Finally, the notice must provide examples of the types of medical and lay evidence that the veteran may submit (or ask the VA to obtain) that are relevant to establishing his or her entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular veteran's circumstances; that is, VA need not notify a veteran of the specific diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Here, a pre-decisional June 2008 letter complied with VA's duty to notify the Veteran with regards to the right ankle claim. Specifically, this letter informed the Veteran that an increase in his right ankle disability may be shown by doctor statements, physical and clinical evaluation results, and statements from individuals who are able to describe from their knowledge and personal observations the manner in which the disability has worsened. The letter also notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Moreover, the Board finds that VA has complied with its duty to assist the Veteran in the development of his right ankle claim. Specifically, the RO obtained VA treatment records, private treatment records, and records from the Social Security Administration (SSA). After a complete and thorough review of the claims file, the Board concludes that all known and available records relevant to this issue have been obtained and associated with the Veteran's claim file. See 38 C.F.R. § 3.159(c)(1)-(3). Indeed, the Veteran has not contended otherwise. Additionally, pertinent VA examinations with respect to the right ankle issue were obtained in June 2008 and January 2012. See 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examinations obtained in this case are sufficient, as they considered all of the pertinent evidence of record, including the statements of the Veteran, and provided the medical information necessary to apply the appropriate rating criteria. The Board finds that VA's duty to assist the Veteran with respect to obtaining a VA examination concerning the issues adjudicated herein has been met. See 38 C.F.R. § 3.159(c)(4). The Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned Acting VLJ in April 2012. In Bryant v. Shinseki, 23 Vet. App. 488, the Court held that 38 C.F.R. § 3.103(c)(2) requires that the DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. During the April 2013 hearing, the Acting VLJ identified the issues on appeal. The hearing discussion did not reveal any evidence that might be available that had not been submitted. The Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for benefits. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the Acting VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. There is simply no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case. Thus, the Board finds that any such failure is harmless. Mayfield v. Nicholson, 20 Vet. App. 537 (2006); Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). III. New and Material Evidence A decision of the RO becomes final and is not subject to revision on the same factual basis unless an appeal is initiated within one year of the notice of decision, or within 60 days of the issuance of the SOC, whichever is later. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 19.129, 19.192, 20.302, 20.1103 (2012). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). "New" evidence is evidence not previously submitted to agency decision makers. "Material" evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA need not accept the patently incredible for purposes of reopening. Duran v. Brown, 7 Vet. App. 216 (1994). The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Barnett, supra. Further analysis, beyond consideration of whether the evidence received is new and material, is neither required nor permitted. Id. at 1384; see also Butler v. Brown, 9 Vet. App. 167, 171 (1996). In January 1997, the Veteran filed a claim for service connection for arthritis of the back, neck, and shoulders. He maintained that he developed arthritis as a result of in-service exposure to ionizing radiation while participating in Operation UPSHOT-KNOTHOLE at the Nevada Test Site. The Veteran's contentions of in-service radiation exposure were corroborated by the Defense Threat Reduction Agency (DTRA). In an unappealed August 1998 rating decision, the RO denied service connection, finding that there was no likely relationship of this condition to the Veteran's actual level of radiation exposure during service. The Veteran did not file an NOD, and the August 2008 rating decision became final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103 (2012). The Veteran attempted to reopen the claim in July 2003. In reaching the conclusion that the August 1998 decision is final, the Board is cognizant of the recent holding of the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Bond v. Shinseki, 659 F.3d 1362 (2011), which found that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions during relevant time periods to determine whether they contain new and material evidence relevant to a pending claim, even if the new submission may support a new claim. Here, new evidence received after the August 1998 rating decision, but prior to the current 2003 claim, includes the Veteran's December 2002 statement indicating he had been exposed to radiation during OPERATION UPSHOT-KNOTHOLE. This evidence is cumulative or duplicative of evidence previously considered. Although this additional evidence was new, it was not material as it did not show that the Veteran's arthritis resulted from exposure to radiation during service. The August 1998 rating decision is thus final. Since the August 1998 decision, the Veteran testified during the April 2012 hearing that he was told by his doctor that his arthritis is related to his in-service radiation exposure. See Hearing Transcript at 11. Also, in a statement dated in July 2003, the Veteran provided additional information about the extent of his radiation exposure during OPERATION UPSHOT-KNOTHOLE. (The Board notes that the Defense Threat Reduction Agency (DTRA) subsequently provided a revised dose estimate based upon this information.) This evidence is new, as it did not exist at the time of the August 1998 determination. Moreover, it directly addresses the unestablished fact of nexus. In tending to substantiate the Veteran's claims by bolstering one element of a claim for service connection (nexus), the new evidence raises the reasonable possibility of substantiating the claims for service connection for arthritis of the back, neck, and shoulders. Accordingly, the Board finds the additional evidence received since the August 1998 decision to be both new and material. Thus, the claims of service connection for arthritis of the back, neck, and shoulders are reopened. 38 U.S.C.A. § 5108. IV. Increased Rating The Veteran asserts that he is entitled to a higher rating for his right ankle disability as this condition results in pain with use (particularly walking or prolonged standing) and instability. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. 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). Where a Veteran appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous...." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, 'staged' ratings may be assigned for separate periods of time based on facts found. Id.; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (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). Further, when evaluating disabilities of the joints, the Schedule provides for consideration of additional functional impairment due to pain, weakness, fatigue, incoordination, and lack of endurance when assigning evaluations. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran's service-connected right ankle disability is evaluated under DC 5271, which provides for a 10 percent evaluation for moderate limitation of motion of the ankle and a 20 percent evaluation for marked limitation of motion of the ankle. See 38 C.F.R. § 4.71a , DC 5271 (2012) The normal range of motion of the ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71a, Plate II (2012). At a June 2008 VA examination, the Veteran complained of right ankle pain that was aggravated by standing for five minutes, walking one-half block, going up and down stairs, or lifting over 20 pounds in weight. Upon physical examination, dorsiflexion was to 25 degrees, and plantar flexion was to 35 degrees. There was pain on motion. There was no additional limitation after repetitive testing or during flare-ups. There was tenderness about the lateral malleolus. The diagnosis was degenerative joint disease of the right ankle. In the December 2008 NOD, the Veteran stated that his doctor had provided him with a cane and was going to "re-do" his shoes. He also stated that he had fallen due to giving way in the right ankle. At a January 2012 VA examination, the Veteran complained of pain in the right lower extremity that radiated to the buttocks. At one point he developed a drop foot, but indicated that it had since resolved. He denied flare-ups. He walked with a cane. Upon physical examination, there was dorsiflexion to 0 degrees, and plantar flexion to 10 degrees. There was no change in range of motion after repetitive testing; however, less movement than normal and weakened movement were noted. Strength testing was 3/5. There was no laxity or ankylosis. The diagnosis was degenerative arthritis. The examiner concluded that the Veteran's disability had no effect on his ability to work since he was retired. During the April 2012 hearing, the Veteran testified that his doctor had prescribed a left leg brace to prevent him from falling due to his drop foot. He noted that he had fallen numerous times before he started wearing the brace. The Board finds that a disability rating greater than 10 percent prior to January 11, 2012 is not warranted. The Veteran had 25 degrees of dorsiflexion and 35 degrees of plantar flexion during the June 2008 VA examination with no limitations due to pain or repetitive motion. It was noted that he used a cane for his knee disabilities. Furthermore, he is not shown to have complained of the right ankle disability at all during primary care visits for which he was seen for bilateral knee, back, and neck problems. Although there was pain on motion and tenderness, there is no persuasive evidence that there was any additional functional loss due to pain, fatigue, weakness, or incoordination to such a degree to result in more than moderate limitation of motion of the ankle. Thus, even when considering DeLuca the Veteran is not entitled to a higher rating for his right ankle disability. Rather, the Veteran's current rating already takes into account any limitation of motion based on pain. The overall disability picture presented by his right ankle disorder prior to January 11, 2012 is that of moderate limitation of motion, which is appropriately rated as 10 percent disabling under DC 5271. His disability picture during this time period does not present such severe limitation of motion to the ankle to be characterized as marked limitation. Thus, a 20 percent disability rating under DC 5271 prior to January 11, 2012 is not warranted. Similarly, given the evidence of record, a higher disability rating would not be warranted under any other diagnostic code. See 38 C.F.R. § 4.7 (2012). Specifically, there is no X-ray evidence of involvement of two or more major joints or two or more minor joint groups with occasional incapacitating episodes. See 38 C.F.R. § 4.71a, DC 5003 (2012). The Board has also considered whether a higher evaluation would be in order under other relevant diagnostic codes, such as that governing ankylosis of the ankle, ankylosis of the subastragalar joint, malunion of the os calcis or astragalus, and astragalectomy, but finds that the criteria for an increased disability rating are simply not met. See 38 C.F.R. § 4.71a, DCs 5270, 5272, 5273, 5274 (201). In this regard, the Veteran has not been shown to have ankylosis of the right ankle. There is no evidence of malunion of the os calcis or astragalus. Therefore, the Board finds that the Veteran is not entitled to a higher or separate evaluation for this time period. The Board also finds that a disability rating greater than 20 percent from January 11, 2012 is not warranted. In this regard, the Board notes that 20 percent is the maximum rating available for limitation of motion of the ankle under DC 5271. The only diagnostic code pertaining to the ankle that provides for a rating in excess of 20 percent is Diagnostic Code 5270 (ankylosis of the ankle), but the evidence in this case does not show ankylosis to any degree whatsoever during the time period prior to July 12, 2012. Thus, pursuant to the Court's holding in Johnston v. Brown, 10 Vet. App. 80 (1997), sections 4.40 and 4.45 are not for application. The Board acknowledges the Veteran's complaints of pain and instability in the right ankle. The Veteran is competent to report his symptomatology. However, as a layperson lacking in medical training and expertise, he cannot provide a competent opinion on a matter as complex as the evaluation of his right ankle disability, and his views are of no probative value. Further, even if his opinion were entitled to some probative value, it is far outweighed by the detailed opinion provided by the medical professionals who performed detailed examinations that did not provide objective evidence supportive of the criteria necessary for an increased rating. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) & Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Accordingly, the Board concludes that the preponderance of the evidence is against the Veteran's claim for an evaluation in excess of 10 percent for his service-connected residuals, right ankle fracture, prior to January 11, 2012, and in excess of 20 percent since January 11, 2012. There is no doubt to be resolved, and an initial increased evaluation for this disability during either time period is not warranted. Other than the periods of staged ratings prior to January 11, 2012 and from January 11, 2012, the level of impairment in the right ankle has been relatively stable throughout the appeals period, and has never been worse than what is warranted for the ratings assigned. Therefore, any further application of staged ratings (i.e., different percentage ratings for different periods of time) is inapplicable. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Consideration has also been given regarding whether the schedular evaluations are inadequate, requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extra-schedular evaluation where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required. Id. at 116. The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's right ankle disorder with the established criteria found in the rating schedule shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology, as discussed above. Furthermore, the Veteran has not been hospitalized for his service-connected right ankle disability. There is no evidence of marked interference with employment solely due to the disability. Moreover, there is no evidence in the medical records of an exceptional or unusual clinical picture. An inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has also been considered. The Board notes that the Veteran retired from his occupation as an instrumentation and control specialist as a result of his back disability. Therefore, any inferred TDIU claim is inapplicable in this case. V. Earlier Effective Date In March 1955, the RO granted service connection for residuals, right ankle fracture and assigned a 10 percent evaluation, effective January 14, 1955. The Veteran did not appeal. By letter dated March 16, 1960, the RO notified the Veteran that it was reducing the right ankle evaluation to zero percent. The Veteran did not appeal. The RO continued the zero percent evaluation in September 1985 and November 1985 rating decisions. In September 1992, the RO increased the right ankle evaluation to 10 percent, effective June 3, 1992. The Veteran did not appeal. The RO continued the 10 percent evaluation in a July 1993 rating decision. In November 2007, more than a year after the March 1955 and September 1992 decisions became final, the Veteran's representative requested an earlier effective date "from 1960 to 1985" for residuals, right ankle fracture. Where a rating decision that established an effective date becomes final, an earlier effective date can only be established by a request for a revision of that decision based on CUE. There is no "freestanding" earlier effective date claim that could be raised at any time. See Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006). The Veteran's disagreements with the effective dates were filed well beyond the filing deadline for the March 1955 and September 1992 rating decisions that assigned the effective dates. The Court made it clear in Rudd that under these circumstances dismissal is required due to the lack of a proper claim. Id. at 300. Accordingly, assignment of earlier effective dates is not warranted. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for arthritis of the back is reopened. To this extent, the appeal is allowed. New and material evidence having been submitted, the claim of entitlement to service connection for arthritis of the neck and shoulders is reopened. To this extent, the appeal is allowed. Entitlement to service connection for hypertension is dismissed. The appeal seeking entitlement to an increased evaluation for residuals, right ankle fracture, in excess of 10 percent prior to January 11, 2012, and in excess of 20 percent since January 11, 2012 is dismissed. The appeal seeking entitlement to an effective date earlier than January 14, 1955 for the grant of service connection for residuals, right ankle fracture, is dismissed. Entitlement to an effective date earlier than June 3, 1992 for the assignment of a 10 percent evaluation for residuals, right ankle fracture, is denied. REMAND Although further delay is regrettable, the Board finds that additional development is needed to adjudicate the remaining issues on appeal. Manlincon Issue The Veteran did not submit an NOD with respect to the August 2012 rating decision regarding entitlement to an earlier effective date for a 20 percent evaluation for residuals, right ankle fracture. However, the Board finds that statements made by the Veteran and his representative during the April 2012 hearing constitute a valid NOD. Specifically, the Veteran testified that he was in disagreement with the effective date and that he is entitled to the 20 percent evaluation from 2003. See Hearing Transcript at 19. The Veteran's testimony constitutes a timely NOD with the August 2012 rating decision. See Tomlin v. Brown, 5 Vet. App. 355 (1993) (statement made during a hearing, when later reduced to writing in a transcript, constitutes a written notice of disagreement within the meaning of 38 U.S.C.A. § 7105). However, it does not appear that the RO has yet issued an SOC addressing this issue. Therefore, the appropriate Board action is to remand that issue for issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238 (1999). Knees The Veteran alleges that he has a bilateral knee condition due to service. In the alternative, he contends that his bilateral knee condition was caused, or has been aggravated, by his service-connected right ankle disability. Entrance and separation examinations contain normal lower extremity evaluations. In September 1990, the Veteran complained that his knees ached. The diagnosis was osteoarthritis, knees. The doctor found no evidence of degenerative joint disease. Private treatment records dated in December 1992, November 1998, and July 2004 contain diagnoses of joint pain and degenerative joint disease. VA treatment records dated in April 1997, April 2001, May 2002, and September 2004 also contain general diagnoses of arthritis and degenerative joint disease. The knees are not specifically mentioned in any of these records. A March 2006 private treatment record shows that the Veteran complained of stiffness and pain in both knees, left greater than right. Upon physical examination, there was bilateral tenderness on palpation of the medial joint line. The doctor diagnosed bilateral osteoarthritis of the knees, aggravated. The Veteran attended a June 2008 VA joint examination. He reportedly began to have difficulty with both knees one year earlier and complained of pain, left worse than right. The pain was aggravated by standing for five minutes or walking two blocks. The left knee gave way once a day. He had been using a cane for two years. Surgery had been recommended, but the Veteran declined. A knee brace had recently been ordered. X-rays of both knees showed severe degenerative changes with obliteration of the medial joint space. X-rays of the right knee showed severe degenerative change with obliteration of the medial joint. The examiner diagnosed degenerative joint disease of the left knee with pain, mild instability, and moderate disability with progression. He also diagnosed degenerative joint disease of the right knee with pain and mild disability. The examiner opined that "it is less likely than not" that the Veteran's knee problems are secondary to the service-connected right ankle. He noted that the ankle injury occurred in 1954 and that the difficulty with the knees began in 2007. The examiner concluded that the Veteran's knee problems are due to obesity, aging, and attrition. He did not consider the theory of direct service connection. The Veteran underwent a left total knee replacement in April 2009. A June 2010 bone scan revealed degenerative changes in both knees. Based on this evidentiary posture, the Board finds that the June 2008 VA examination report is inadequate. Once VA undertakes the effort to provide an examination when developing a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, another opinion is warranted addressing direct and secondary service connection. New and Material Evidence - Back The Veteran contends that his back arthritis is due to in-service exposure to ionizing radiation. In the alternative, he contends that this condition was caused, or has been aggravated, by his service-connected right ankle disability. Entrance and separation examinations contain normal spine evaluations. The first post-service evidence of any back trouble is an April 1977 private treatment record from Dr. J.H.S. The Veteran gave a history of low back pain "off and on" for several years and a previous diagnosis of muscle strain. A May 1979 private treatment record from Dr. S.B.B. indicates that the Veteran worked as a truck driver and had an aggravated disc due to an on-the-job injury several months earlier. The doctor reviewed the X-rays and noted that "[t]here may be some very minimal changes and he may have a pars defect on the left side." The impression was chronic fatigue or back strain. The Board notes that there are several other entries on this particular page in the record. However, only the May 1979 entry is crossed out. A March 1985 private treatment record from Dr. S.B.B. shows that the Veteran was "starting to have some lumbar pain." The Veteran was treated for low back pain in January 1986. The diagnosis was lumbar strain. In January 1989, the Veteran was treated for back pain of one year's duration. X-rays of the lumbar spine revealed mild scattered anterior spurring in the low lumbar area, slightly more pronounced at the left side of L4-5. The diagnoses included mechanical back pain with osteoarthritis. In May 1989, the Veteran was involved in a motor vehicle accident. The diagnoses included hyperextension injury to the back. In October 1989, the doctor noted that the Veteran's osteoarthritis or degenerative disc disease in the lower back was aggravated by the motor vehicle accident. A March 1990 letter from Dr. S.B.B. shows that the Veteran had osteoarthritis with degenerative disc in the lower back, which had been aggravated by the motor vehicle accident. In April 1990, it was noted that the Veteran's insurance company required a periodic visit. In January 1991, the Veteran complained of low back pain. In August 1991, the Veteran's doctor noted a long-standing problem of occasional low back pain. The diagnosis was history of osteoarthritis of the spine. In November 1991, he was diagnosed with degenerative disc disease. In November 1991, the Social Security Administration (SSA) found the Veteran to be disabled due, in part, to degenerative disc disease in the lumbar spine. Private treatment records dated in December 1992, November 1998, and July 2004 contain diagnoses of joint pain and degenerative joint disease. VA treatment records dated in April 1997, April 2001, May 2002, and September 2004 also contain general diagnoses of arthritis and degenerative joint disease. The Veteran received chiropractic treatment for his back from December 2000 to July 2004. During his initial visit, the Veteran complained of recurrent pain and numbness in the low back. The diagnosis was lumbar radiculitis. The Board notes that the remainder of these records are, for the most part, illegible. A September 2005 MRI of the lumbar spine revealed a somewhat narrow diameter of the vertebral canal throughout the lumbar region, as well as features of acquired spinal stenosis at L4- produced primarily by prominent hypertrophy of the ligaments flavum. A March 2006 private treatment record shows that the Veteran complained of low back pain. Upon physical examination, there was bilateral tenderness on palpation of the medial joint line. The doctor diagnosed lumbar spinal stenosis; degeneration of lumbar intervertebral disc; and lumbar spondylosis without myelopathy, aggravated. The Veteran submitted to a June 2008 VA spine examination. He reportedly began to have low back pain in 1985, which he rated 7/10 in severity. He was able to walk two blocks or stand for only five minutes. The pain was alleviated with Bio-Freeze and a TENS unit. X-rays showed moderate degenerative joint disease. The diagnosis was degenerative joint disease of the lumbar spine with back pain, moderate disability with progression. The examiner opined that the spine problem was not secondary to the service-connected right ankle disability, noting that there was nothing in the orthopedic literature that supported such a relationship. He did not consider the theory of direct service connection, to include in-service exposure to ionizing radiation. Based on this evidentiary posture, the Board finds that the June 2008 VA examination report is inadequate. Once VA undertakes the effort to provide an examination when developing a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, another opinion is warranted addressing direct and secondary service connection. New and Material Evidence - Neck and Shoulders The Veteran contends that his neck and shoulder arthritis is due to in-service exposure to ionizing radiation. The private and VA treatment records show current diagnosis for cervical spine arthritis and shoulder pain. The Board is requesting that a qualified VA examiner express an opinion as to whether any currently diagnosed neck or shoulder arthritis is related to service, to include the in-service radiation exposure. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Shade v. Shinseki, 24 Vet. App. 110, 118-19 (2010) (receipt of new and material evidence triggers full VA duty to assist obligations including obtaining VA examination or medical opinion). Basal Cell Carcinoma The Veteran is currently rated noncompensable for basal cell carcinoma status post excision of lesions from the lip, nose, and neck under 38 C.F.R. § 4.118, DC 7818. He asserts that he continues to have new lesions removed, thus warranting a higher rating. In February 2013, the Veteran submitted a statement indicating that his service-connected skin condition had worsened. Specifically, he stated that he had had skin cancer removed from his upper cheek in March 2012 at a Dallas VA hospital. The claims file does not contain treatment records for this facility for this time period. All VA records are constructively of record. Bell v. Derwinski, 2 Vet. App. 611 (1992). As such, an attempt should be made to obtain the records reflecting dermatological treatment from March 2012 to the present from the Dallas VAMC and the Bonham VAMC. Accordingly, the case is REMANDED for the following actions: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Associate with the claims file complete, updated VA treatment records from the Dallas VAMC and the Bonham VAMC for the period of March 2012 to the present. 2. Schedule an appropriate VA examination to determine the nature, extent, and etiology of the Veteran's bilateral knee, back, neck, and shoulder disabilities. The claims file must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted. The examiner is requested to obtain a history of the Veteran's symptoms as observed by him and others since service, review the record, and offer the following opinions: (a) Whether it is at least as likely as not, i.e., 50 percent or greater probability, that any currently diagnosed bilateral knee, back, neck, and shoulder disability had its clinical onset during or as a result of the Veteran's service, to include conceded in-service exposure to ionizing radiation, or within one year of the January 1955 separation? In answering this question, the examiner should address the January 1955 separation examination, all relevant treatment records, the revised DTRA dose estimate, the Veteran's July 2003 lay statement, and the Veteran's April 2013 testimony. (b) Whether it is at least as likely as not, i.e., 50 percent or greater probability, that any currently diagnosed bilateral knee disability was caused or aggravated (permanently worsened beyond natural progression) by the Veteran's service-connected right ankle disability? In answering this question, the examiner should address all relevant treatment records. In addition, the examiner should discuss the effect, if any, of the Veteran's back disability on his ability to obtain and to maintain gainful employment, taking into account his education and employment experience but without regard to his age and to any nonservice-connected disabilities. A rationale for all opinions should be provided. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Thereafter, readjudicate the remaining claims on appeal. If any of the benefits sought remain denied, issue a supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant unless he is notified. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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). ______________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs