Citation Nr: 1326344 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 07-26 902 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for status post right patellar tendon repair. 2. Entitlement to an initial rating in excess of 30 percent for paresthesias of the left side of the face and left mucobuccal fold. 3. Entitlement to service connection for a back disorder, to include as secondary to service-connected disabilities. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1997 to February 1998 and September 1998 to June 2000 with additional service in the Army National Guard. This case comes before the Board of Veterans' Appeals (Board) on appeal from November 2005 and April 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. With regard to the service-connected left facial nerve disability, the RO increased the rating to 10 percent, effective January 7, 2005, in a September 2008 rating decision, and increased the rating to 30 percent, effective January 7, 2005, in an August 2012 rating decision. In August 2012, the RO also increased the rating for the right knee disability to 10 percent, effective January 7, 2005. A claim for an initial or increased rating presumes the veteran is seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy, even if partially granted, where less than the maximum benefit available is awarded. Because the currently-assigned 10 percent and 30 percent ratings are not the maximum benefits available for these service-connected disabilities, respectively, these appeals continue for the entire initial rating period. AB v. Brown, 6 Vet. App. 35 (1993). The Veteran testified before the undersigned Veterans Law Judge (VLJ) in January 2009. A transcript of the hearing is of record. The case was remanded by the Board in June 2009 and November 2011 for further development and is now ready for disposition for the claims on appeal. The Board has not only reviewed the physical claims file but also the file on the "Virtual VA" system to ensure a total review of the evidence. The issue of service connection for bilateral pes planus has been raised by the record in a June 2013 post-remand brief, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. For the entire period on appeal, the right knee disability more closely approximates manifestations of painful motion, crepitus, tenderness, mild swelling, and full range of motion. 2. For the entire period on appeal, the left facial nerve disability more closely approximates manifestations of severe incomplete paralysis of the fifth (trigeminal) cranial nerve, pain, headaches, numbness, burning, clogged ears, and altered sensation in lips and chin. 3. The Veteran did not sustain a back injury or disease during service. 4. A current back disorder, diagnosed as musculoskeletal pain, chronic back pain, and mild degenerative spondylosis, is not causally or etiologically related to service, to include any injury or event therein, or to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for status post right patellar tendon repair have not been met for any period. 38 U.S.C.A. §§ 1155, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5262 (2012). 2. The criteria for an initial rating in excess of 30 percent for paresthesias of the left side of the face and left mucobuccal fold have not been met for any period. 38 U.S.C.A. §§ 1155, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.124a, DC 8205 (2012). 3. A back disorder was not incurred in or aggravated by service; nor is it proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran is seeking higher disability ratings for service-connected right knee and left facial nerve disabilities and service connection for a back disorder, to include as secondary to service-connected disabilities. The Board has reviewed all of the evidence in the physical claims folder and on the "Virtual VA" system. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims on appeal. Increased Rating Claims Disability evaluations are determined by the application of the schedule of ratings which is based on average impairment of earning capacity. See U.S.C.A. § 1155 (West 2002). Separate diagnostic codes identify the various disabilities. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). When entitlement to compensation has been established and a higher initial evaluation is at issue, the level of disability at the time entitlement arose is of primary concern. Consideration must also be given to a longitudinal picture of the Veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Right Knee Disability Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 205 (1995). It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The service-connected right knee disability is rated at 10 percent since January 7, 2005, under DC 5262 for painful motion. Thus, the currently-assigned 10 percent rating encompasses the Veteran's ongoing complaints and treatment for pain in the right knee, as documented in VA outpatient treatment records dated September 2006 and September 2009, June 2007 and November 2011 VA examination reports, August 2007 VA Form 9, and at the January 2009 Board hearing. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 205; VAOPGCPREC 9-98. After a full review of the record and consideration of whether the assignment of separate ratings for separate periods of time is warranted, the Board finds that a preponderance of the evidence is against the Veteran's appeal for an initial rating in excess of 10 percent for the entire time on appeal. Under DC 5262, impairment of the tibia and fibula is warranted a 10 percent evaluation with slight malunion of knee or ankle disability, a 20 percent evaluation with moderate malunion of knee disability, a 30 percent evaluation with marked malunion of knee disability, and a 40 percent evaluation for nonunion with loose motion requiring a brace. See 38 C.F.R. § 4.71a. In this case, the pertinent evidence shows that on VA examination in June 2007, the Veteran reported he does not use a brace or assistive device. Following a September 2009 VA outpatient treatment session, the physician concluded with an impression of right knee pain with altered patellar tracking and will try a knee sleeve for symptomatic relief. The Board acknowledges the September 2009 VA outpatient treatment record's notation that the Veteran will try a knee sleeve, but subsequent treatment records are silent as to indicating the Veteran's attempted use or required use of the sleeve. As impairment of the tibia and fibula with moderate or marked malunion of knee disability or nonunion with loose motion requiring a brace is not shown, a rating in excess of 10 percent is not warranted under DC 5262. Review of the evidentiary record, as discussed above, does not indicate that a higher rating is warranted under additional DCs applicable to the knee. See 38 C.F.R. § 4.71a. The criteria for DC 5256 (ankylosis of the knee) and DC 5003 (degenerative arthritis) do not support a higher rating. See 38 C.F.R. § 4.71a. Specifically, the evidence does not show ankylosis of the right knee and range of motion of the right knee was shown, as noted below. Moreover, May 2005 x-ray findings of the right knee show mild right osteoarthritis and bilateral posttraumatic changes; however, findings of occasional incapacitating exacerbations were not indicated of record nor asserted by the Veteran. Therefore, the evidence does not support a higher rating under DCs 5256 or 5003. The criteria for DC 5257 (subluxation or lateral instability) and DC 5258 (dislocated cartilage) do not support a higher rating. See 38 C.F.R. § 4.71a. The Board acknowledges the Veteran's reported complaints that the right knee buckles, locks, clicks, pops, and swells at the June 2007 VA examination and November 2011 VA DBQ examination for the joints. However, objective findings upon physical examinations do not present moderate or severe subluxation or lateral instability or dislocated cartilage with frequent episodes of "locking," pain, and effusion into the joint. Specifically, results from the anterior drawer, Lachman, and McMurray tests were negative, as noted by the June 2007 VA examiner. An April 2010 VA outpatient treatment record noted negative results from the Drawer test. Most recently, the November 2011 VA DBQ examiner documented no findings of instability to varus, valgus, anterior or posterior stressing, or a positive McMurray's sign. Therefore, the evidence does not support a higher rating under DCs 5257 or 5258. Furthermore, the criteria for DC 5260 (limitation of flexion of the leg) and DC 5261 (limitation of extension of the leg) do not support a higher rating. See 38 C.F.R. § 4.71a, Plate II (normal range of motion for the knee is from 0 degrees extension to 140 degrees flexion). Specifically, the Veteran exhibited flexion to 145 degrees and extension to 0 degrees at the June 2007 VA examination, as well as, flexion to 140 degrees and extension to 0 degrees at the November 2011 DBQ VA examination. In addition, good range of motion was noted in VA outpatient treatment records dated September 2006, November 2008, and May 2009. Thus, the evidence does not show the Veteran demonstrated flexion of the right knee limited to 30 degrees or less or extension of the right knee limited to 15 degrees or more to support a higher rating under DCs 5260 or 5261. The Board also considers whether a separate rating is warranted under the diagnostic codes for a skin disability. See 38 C.F.R. § 4.118, DCs 7801-7805 (2012). Specifically, the June 2007 VA examiner noted a well-healed anterior surgical incision on the Veteran's right knee measuring approximately 13 x 1 centimeter with impaired sensation to light touch over the scar area. A May 2010 VA outpatient treatment record also noted the Veteran's right knee with old surgical scar. The evidence of record shows this scar is not 144 sq. in. or greater to warrant application of DC 7802 (scars, other than head, face, or neck that are superficial and do not cause limitation of motion). The scar is not shown to be unstable or painful to warrant application of DC 7803 (superficial, unstable scars) or DC 7804 (superficial, painful on examination scars). Additionally, the evidence of record does not indicate the scar limits the Veteran's motion to warrant application of DC 7801 (scars, other than head, face, or neck, that are deep or that cause limited motion) or DC 7805 (scars, other, which are rated on limitation of function of the affected part). Therefore, the evidence does not support a higher rating under DCs 7801, 7802, 7803, 7804, or 7805. The evidence of record indicates the right knee disability more closely approximates manifestations of painful motion, crepitus, tenderness, mild swelling, and full range of motion. Moreover, the evidence of record shows that physical findings of the Veteran's right knee during the entire initial rating period do not demonstrate ankylosis, x-ray findings of arthritis with occasional incapacitating exacerbations, moderate or severe subluxation or lateral instability, dislocated cartilage with frequent episodes of "locking," pain, and effusion into the joint, flexion limited to 30 degrees or less, or extension limited to 15 degrees or more to warrant the next higher rating. Left Facial Nerve Disability The left facial nerve disability is rated at 30 percent since January 7, 2005, under DC 8205 for severe incomplete paralysis of the fifth (trigeminal) cranial nerve. See 38 C.F.R. § 4.124a (2012). Thus, the currently-assigned 30 percent rating encompasses the Veteran's ongoing complaints and treatment for pain, headaches, numbness, burning, clogged ears, and altered sensation in lips and chin, as documented in VA outpatient treatment records, VA examination reports dated March 2005 and December 2006, and the January 2009 Board hearing transcript. Moreover, in April 2007, the RO separately granted service connection for non-union left angle fracture of the mandible with osteomyelitis and assigned a 10 percent rating under DC 9903. See 38 C.F.R. § 4.150 (2012). After a full review of the record and consideration of whether the assignment of separate ratings for separate periods of time is warranted, the Board finds that a preponderance of the evidence is against the Veteran's appeal for an initial rating in excess of 30 percent for the entire time on appeal. Under DC 8205, paralysis of the fifth (trigeminal) cranial nerve is warranted a 30 percent evaluation with severe incomplete paralysis and a 50 percent evaluation with complete paralysis. 38 C.F.R. § 4.124a. The severity of the paralysis is dependent upon the relative degree of sensory manifestation or motor loss. Id. During the course of this appeal, the Veteran underwent multiple VA examinations for dental and oral conditions. In December 2006, clinical findings revealed no swelling, deviation upon opening, limitation upon functioning, palpation of the mandible, or elicited pain response. The examiner noted, in pertinent part, permanent paresthesia present from initial repair fracture of mandible and burning sensation present as a result of the plating in place. An April 2007 VA medical opinion noted the Veteran's permanent paresthesia and burning sensation on the left side. In August 2009, clinical findings documented no deviation upon opening, palpation of the mandible as normal, and palpation of the temporomandibular joint (TMJ) area is positive bilaterally. The examiner also noted there is no loss of masticatory function. Most recently, at November 2011 VA examination for peripheral nerves, the examiner characterized the Veteran's disability as moderately severe left trigeminal sensory neuropathy of left face. This assessment was based on clinical findings of moderate decreased sensation to light touch and pin on left face in distribution of V2 and V3 of left trigeminal nerve and trigger point on left angle of mouth and dysesthesia. As complete paralysis of the fifth (trigeminal) cranial nerve is not shown, a rating in excess of 30 percent is not warranted under DC 8205. The Board acknowledges the Veteran's submission of an internet article regarding oral and maxillofacial regional anesthesia; however, it is not competent evidence in support of this claim. The article was submitted without any reference to it by any health care professional nor has it been explained how this article relates to the claim. It does not appear to delve into an association between the Veteran's service-connected left facial nerve disability and his currently symptomatology. See Libertine v. Brown, 9 Vet. App. 521, 523 (1996)(noting when generic medical literature does not provide competent evidence to establish a nexus); Wallin v. West, 11 Vet. App. 509, 513 (1998) (indicating when medical treatise information may be regarded as competent evidence). Moreover, the article is not regarded as germane, as it does not apply the specific facts to this specific case. See Sacks v. West, 11 Vet. App. 314, 317 (1998). The evidence of record indicates the left facial nerve disability more closely approximates manifestations of severe incomplete paralysis of the fifth (trigeminal) cranial nerve, pain, headaches, numbness, burning, clogged ears, and altered sensation in lips and chin. Moreover, the evidence of record shows that physical findings of the Veteran's left facial nerve disability during the entire initial rating period do not demonstrate complete paralysis to warrant the next higher rating. With regard to both service-connected disabilities on appeal, the Board notes that VA outpatient treatment records from September 2000 to July 2001 are of record and document the Veteran's complaints and treatment for the service-connected right knee and left facial nerve disabilities on appeal. Nevertheless, the effective date is the date entitlement arose or the date of claim, whichever is later, which in this case is the date of claim in January 2005. See 38 C.F.R. § 3.400. As a result, the Board finds that any further discussion of the evidentiary record prior to January 2005 will not warrant higher ratings at any time for the initial rating period on appeal. The Board has considered the Veteran's statements that his right knee and left facial nerve disabilities are worse, as noted in the January 2009 Board hearing transcript and personal statements. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes through their senses and observations. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of disability of his disabilities according to the appropriate diagnostic codes. In this decision, the Board has considered both the lay statements and medical opinions regarding the degree of impairment caused by the right knee and left facial nerve disabilities. Next, the Board has considered all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, with respect to all the claims as required by the United States Court of Appeals for Veterans Claims (Court). See Schafrath, 1 Vet. App. at 594. However, after careful review of the available diagnostic codes and the lay and medical evidence of record, the Board finds there are no other diagnostic codes that provide a basis to assign ratings higher than the currently assigned evaluations for the service-connected disabilities on appeal for any period. The Board considers and finds the issue of a total disability rating based on individual unemployability (TDIU) due to the service-connected right knee or left facial nerve disability for any period is not warranted. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). While the record is not completely clear, the November 2011 VA examiner noted the Veteran's work status as "currently working as a personal trainer." There is no subsequent contradictory evidence of record regarding his employment status. Therefore, TDIU has not been raised by the record. Additionally, the Board has also applied Mittleider v. West, 11 Vet. App. 181 (1998) and has attributed all the Veteran's symptoms to his service-connected disabilities. With that in mind, the Board has considered whether referral for extra-schedular consideration is warranted. In exceptional cases where schedular evaluations are found to be inadequate, consideration of an extra-schedular evaluation is made. 38 C.F.R. § 3.321(b)(1) (2012). There is a three-step analysis for determining whether an extra-schedular evaluation is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of a veteran's service-connected disability and the established criteria found in the rating schedule to determine whether a veteran's disability picture is adequately contemplated by the rating schedule. If not, the second step is to determine whether the claimants exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." See also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. The Court has held that VA's disability-by-disability interpretation of 38 C.F.R. § 3.321(b)(1) is not unreasonable, plainly erroneous, or inconsistent with the regulation or the statutory and regulatory scheme when viewed as a whole, thus the Board was not required to consider whether a veteran's was entitled to referral for extra-schedular consideration of the service-connected disabilities on a collective basis. See Johnson v. Shinseki, WL 1224810 (Vet. App. March 27, 2013). In this case, the Board finds that the schedular rating criteria adequately contemplate and describe the symptoms and functional impairment caused by each service-connected disability on appeal. Specifically, the respective criteria contemplate, respectively, painful motion, crepitus, tenderness, and mild swelling of the right knee, as well as severe incomplete paralysis of the fifth (trigeminal) cranial nerve, pain, headaches, numbness, burning, clogged ears, and altered sensation in lips and chin. For these reasons, the Board finds that the assigned schedular ratings are adequate to rate the Veteran's for status post right patellar tendon repair and paresthesias of the left side of the face and left mucobuccal fold disabilities, and no referral for an extra-schedular rating is required. Service Connection for a Back Disorder The Veteran contends that service connection is warranted for a back disorder due to pain over the right upper and mid areas since 1998 in service, as reported at the June 2007 VA spine examination. In the June 2013 post-remand brief, he also asserted service connection is warranted on a secondary basis due to the service-connected bilateral knees and right ankle disabilities. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may be established under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). In this case, the claim on appeal is not listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply in this case. The third alternative for granting service connection is that certain chronic diseases may be established based upon a legal presumption by showing that it manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. In this case, as above, the claim on appeal is not listed in 38 C.F.R. §§ 3.307, 3.309(a); therefore, the one-year presumption does not apply. Finally, service connection may also be established for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). This has been interpreted as a three-element test based on nexus: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310 (2012). Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. With respect to evaluating the medical evidence, generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of a veteran's claims file. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the 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). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert, 1 Vet. App. at 49. Post-service evidence reflects back symptomatology starting in September 2004. At that time, the Veteran reported low back pain due to body slamming an assailant. In October 2004, he further complained of low back pain for two weeks and diagnosed with musculoskeletal pain. A June 2007 VA examiner diagnosed chronic upper back pain. Most recently, a November 2010 magnetic resonance imaging (MRI) report of the lumbar spine revealed mild degenerative spondylosis. Therefore, a back disorder is currently shown. The evidence does not reflect that an in-service incurrence or injury. This finding is supported by the fact that he sought treatment for a myriad of other medical complaints, including other orthopedic disorders, but never mentioned the back, even at the time he was having treatment for knee and ankle disorders. Therefore, the Board finds his lay statements as to the onset of back symptomatology in service not credible. As the second element (in-service incurrence) is not demonstrated with respect to the back, the claim for service connection on this issue is denied. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring) (VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred). In this decision, the Board has considered the lay evidence as it pertains to the issue. See Gabrielson, 7 Vet. App. at 39-40; Gilbert, 1 Vet. App. at 57; Rucker, 10 Vet. App. at 74; Layno, 6 Vet. App. at 469; see also Cartright, 2 Vet. App. at 25. The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms."). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). As part of the current VA disability compensation claim, in recent statements and sworn testimony, the Veteran has asserted that his back disorder is related to service. He asserts that he experienced symptoms relating to the back since separation from service. In this case, the Board finds that the weight of the evidence demonstrates that the Veteran did not experience symptoms of a back disorder since service separation. Further, the Board concludes that his lay assertion of a nexus between active service and his current complaints, while competent, is not credible. The Board finds that the Veteran's more recently-reported history of symptoms of a back disorder since active service is inconsistent with the other lay and medical evidence of record. Indeed, while he now asserts that his disorder began in service, in the more contemporaneous medical history he gave at the time of service separation, he denied any history or complaints of symptoms of a back disorder. Specifically, the Report of Medical Assessment, via a DD Form 2697, at the time of service separation reflects that the Veteran reported his overall health was the same compared to his last medical assessment/physical examination, with the exception of a broken jaw. The health care provider also noted the Veteran was in process of separation, did not refer the Veteran for further evaluation, and did not report any complaints or abnormalities with regard to the Veteran's back. The Veteran's in-service history of symptoms at the time of service separation is more contemporaneous to service, so is of more probative value than the more recent assertions made many years after service separation. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the veteran wrote during treatment than to his subsequent assertion years later). The post-service medical evidence does not reflect complaints or treatment related to the back for approximately four years following active service. While not dispositive, the Board takes not of the multi-year gap between discharge from active duty service (2000) and initial reported symptoms related to a back disorder in approximately 2004. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability); see Kahana, 24 Vet. App. at 440. The Board notes that the Veteran sought treatment for a myriad of medical complaints since discharge from service, including the left facial nerve (2000) and right knee (2001). Significantly, during that treatment, when he specifically complained of other problems, he never reported complaints related to the back. Moreover, when he sought to establish medical care with VA after service in October 2004, he did not report the onset of back symptomatology during or soon after service or even indicate that the symptoms were of longstanding duration and, reported a recent onset of symptoms for 2 weeks. Such histories reported by the Veteran for treatment purposes are of more probative value than the more recent assertions and histories given for VA disability compensation purposes. Rucker, 10 Vet. App. at 73 (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). He did not claim that symptoms of his disorder began in (or soon after) service until he underwent the June 2007 VA spine examination in connection with his current VA disability compensation claim. Such statements made for VA disability compensation purposes are of lesser probative value than his previous more contemporaneous in-service histories. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the veteran's statements, it may consider whether self-interest may be a factor in making such statements). The Board has weighed the Veteran's statements as to a nexus and finds his current recollections and statements made in connection with a claim for VA compensation benefits to be of lesser probative value than his previous more contemporaneous in-service history and findings at service separation, the absence of complaints or treatment for years after service, and his previous statements made for treatment purposes. For these reasons, the Board finds that the weight of the lay and medical evidence is against a finding of a nexus between his current claim and service. While the Board reiterates that he is competent to report symptoms as they come to him through his senses, musculoskeletal pain, chronic back pain, and mild degenerative spondylosis, are not the types of disorders that a lay person can provide competent evidence on questions of etiology or diagnosis. Such competent evidence has been provided by the medical personnel who have examined the Veteran during the current appeal and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. See Cartright, 2 Vet. App. at 25. Next, service connection may be granted when the evidence establishes a nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's back disorder to active duty, despite his contentions to the contrary. To that end, the Board places significant probative value on the June 2007 VA examination undertaken specifically to address the issue on appeal. At that time, the Veteran reported pain over the right upper and mid back areas since 1998 in service. After a physical examination, the examiner diagnosed chronic right upper back pain. The examiner opined that right upper back pain was likely secondary to myofascial pain syndrome. The examiner reflected that there was no documented injury to the upper back in the claims file and therefore the Veteran's current back condition was less likely as not a result of service. The Board finds that the examination was adequate for evaluation purposes. Specifically, the examiner reviewed the claims file, interviewed the Veteran, and conducted a physical examination. There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. Moreover, the examiner has the requisite medical expertise to render a medical opinion regarding the etiology of the disorder and had sufficient facts and data on which to base the conclusion. Further, there is no contradicting medical evidence of record. Therefore, the Board finds the VA examiner's opinion to be of great probative value. Furthermore, the Board acknowledges that service connection for a back disorder, to include as secondary to a service-connected disability, has been raised by the Veteran's representative in the June 2013 post-remand brief. Specifically, the representative contends that the Veteran's service-connected knee and ankle made him unable to defend himself when he was beat up in 2004 and injured his back. Nonetheless, in Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000), the Federal Circuit held that VA's duty to assist attaches to the investigation of all possible in-service causes of a disability, including those unknown to a veteran); see Comer v. Peake, 552 F.3d 1362, 1368 (Fed. Cir. 2009). The Federal Circuit and the Court, however, have clarified that alternative theories of entitlement to the same benefit do not constitute separate claims but are instead encompassed within a single claim. See Bingham v. Nicholson, 421 F.3d 1346, 1348-49 (Fed. Cir. 2005); Roebuck v. Nicholson, 20 Vet. App. 307, 313 (2006); see also Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009). As noted above, the June 2007 VA examiner opined that the Veteran's back disorder was secondary to myofascial pain syndrome, which is a nonservice-connected disorder. Although the VA examiner did not expressly address whether the back symptoms were secondary to the service-connected bilateral knees and right ankle disabilities, a fair reading of this medical opinion is that the examiner determined that it was secondary to myofascial pain syndrome and not to any other underlying disability. Moreover, the evidentiary record does not show any underlying back pathology at that time, other than myofascial pain syndrome. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103(a), 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2) (West 2002). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in January 2005 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claim for service connection for a back disorder on a direct basis and of his and VA's respective duties for obtaining evidence. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, in August 2009, the RO provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. While notice regarding service connection on a secondary basis pursuant to 38 C.F.R. § 3.310 was not provided, the Board acknowledges that adequate notice was sent to the Veteran at time of the initial claim in the January 2005 letter. See 38 C.F.R. § 19.9(d). Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The Veteran's claims for the service-connected disabilities on appeal arise from his disagreement with the initial evaluations following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In determining whether a medical examination be provided or medical opinion obtained, there are four factors to consider: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or manifestations during the presumptive period; (3) an indication that the disability or symptoms may be associated with service; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. With respect to the third factor, the types of evidence that "indicate" that a current disorder "may be associated" with service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore the appellate review above can proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has obtained service treatment records, VA outpatient treatment records, he was afforded VA examinations in March 2005, December 2006, June 2007, August 2009, and November 2011, as well as an April 2007 VA medical opinion, and the Veteran submitted an internet article with regard to the service-connected left facial nerve disability. Further, he was provided an opportunity to set forth his contentions during the hearing before the undersigned VLJ in January 2009 and the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). See Bryant v. Shinseki, 23 Vet. App. 488 (2010). Although a VA medical opinion was not obtained for the claim of service connection for a back disorder on a secondary basis, none is required. Here, the only evidence that the Veteran's back disorder is related to a service-connected disability is his representative's own conclusory generalized lay statements in the June 2013 post-remand brief, which are unsupported by the medical evidence of record. Accordingly, the Board finds that referral for a VA medical opinion is not warranted. Pursuant to the Board's June 2009 remand instructions, the RO arranged for an August 2009 VA dental examination. The examination report reflects that the examiner considered the evidence of record and the reported history of the Veteran, conducted a thorough examination of the Veteran, noting all findings necessary for proper adjudication of the matter, and explained the rationale for the opinions offered. The RO also obtained and associated with the claims file VA outpatient treatment records from September 2006 to May 2009 and readjudicated the issues on appeal in a December 2009 Supplemental Statement of the Case (SSOC). Pursuant to the Board's November 2011 remand instructions, the RO arranged for November 2011 VA examinations. The examination reports reflect that the examiners considered the evidence of record and the reported history of the Veteran, conducted a thorough examination of the Veteran's right knee and left facial nerve disabilities, noting all findings necessary for proper adjudication of these matters, and explained the rationale for the opinions offered. The RO also obtained and associated with the claims file VA outpatient treatment records from August 2009 to November 2011, to include the November 2010 MRI report of the back, and readjudicated the issues on appeal in an August 2012 SSOC. Hence, the RO's actions stated above are adequate and substantially complied with the June 2009 and November 2011 remand instructions. The Board finds that all necessary development has been accomplished, and therefore the appellate review above can proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER An initial rating in excess of 10 percent for status post right patellar tendon repair is denied. An initial rating in excess of 30 percent for paresthesias of the left side of the face and left mucobuccal fold is denied. Service connection for a back disorder, to include as secondary to service-connected disabilities, is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs