Citation Nr: 1332001 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 10-14 722 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a lumbar spine disability. 2. Entitlement to service connection for a right ankle disability. 3. Entitlement to service connection for a left ankle disability. 4. Entitlement to service connection for a right foot disability. 5. Entitlement to service connection for a left foot disability. 6. Entitlement to service connection for joint pain, to include as due to an undiagnosed illness. 7. Entitlement to an initial evaluation in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Marine Corps League WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran had active service from October 1984 to October 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In March 2013, the Board remanded the claims for additional development. In connection with this appeal, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in December 2011 and accepted such hearing in lieu of an in-person hearing before a Veterans Law Judge. A transcript of the hearing is associated with the claims file. The issue of entitlement to an initial evaluation in excess of 30 percent for service-connected PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran does not have a low back disability, a foot disability, or an ankle disability, that was caused or aggravated by his service. 2. The Veteran does not have joint pain that is related to his service. CONCLUSIONS OF LAW 1. A low back disability, a foot disability, and an ankle disability, were not incurred in or aggravated by active military service, nor may arthritis of the low back be presumed to be related to service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). 2. Joint pain is not related to service. 38 U.S.C.A. §§ 1110, 1117, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection The Veteran asserts that he is entitled to service connection for a low back disability, a bilateral foot disability, a bilateral ankle disability, and joint pain, with the claim for joint pain to include as due to an undiagnosed illness. He has testified that he sustained separate injuries to his left ankle, right ankle, left foot, and right foot. He testified that each of the injuries occurred during service at Camp Lejeune, with treatment by a corpsman, or treatment from going to sick call. He testified that he injured his low back when he fell off of a dump truck in 1988, for which he received treatment that included muscle relaxers and light duty. With regard to the claim for joint pain, he has testified that he began experiencing joint pain during service in the Gulf War, and he indicated that he thought it may be due to either use of "nerve agent pills," or exposure to environmental hazards to include smoke from burning oil wells. In March 2009, the Veteran filed his claims. In October 2009, the RO denied the claims. The Veteran has appealed. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection may also be granted for arthritis, when manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. Feb. 21, 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. A "Persian Gulf Veteran" is one who served in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317. The United States Congress has defined the Persian Gulf War as beginning on August 2, 1990, the date that Iraq invaded the country of Kuwait, through a date to be prescribed by Presidential proclamation of law. 38 C.F.R. § 3.2(i) (2013). Service-connected disability compensation may be paid to (1) a claimant who is "a Persian Gulf veteran"; (2) "who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of [38 C.F.R. § 3.317 ]"; (3) which "became manifest either during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016"; and (4) that such symptomatology "by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis." Signs or symptoms which may be manifestations of undiagnosed illness include, but are not limited to: fatigue, signs or symptoms involving the skin, muscle or joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system, and gastrointestinal signs or symptoms. 38 C.F.R. § 3.317(a), (b). For purposes of this section, a qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) An undiagnosed illness; (B) The following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: (1) Chronic fatigue syndrome; (2) Fibromyalgia; (3) Irritable bowel syndrome; or (4) Any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness; or (C) Any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. 1117(d) warrants a presumption of service-connection. 38 C.F.R. § 3.317(a)(2)(i). For purposes of this section, the term medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). For purposes of this section, "objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). For purposes of this section, disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). By definition, section 1117 only provides compensation for symptoms of a chronic disability that have not been attributed to a "known clinical diagnosis." 38 C.F.R. § 3.317(a)(1)(ii) ; Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006) ("The very essence of an undiagnosed illness is that there is no diagnosis."); Gutierrez v. Principi, 19 Vet. App. 1, 10 (2004) (a Persian Gulf War veteran's symptoms "cannot be related to any known clinical diagnosis for compensation to be awarded under section 1117"); 60 Fed. Reg. 6660, 6665 (Feb. 3, 1995) ("The undiagnosed illness provisions of Public Law 103-446, as implemented by § 3.317, were specifically intended to relieve the unique situation in which certain Persian Gulf War veterans found themselves unable to establish entitlement to VA compensation because their illnesses currently cannot be diagnosed."). In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez, 19 Vet. App. at 8-9. Further, lay persons are competent to report objective signs of illness. Id. As an initial matter, the Board notes that service connection is currently in effect for disabilities that include fibromyalgia. Furthermore, the Veteran's service records show that he meets the criteria for consideration as a Persian Gulf veteran for purposes of 38 C.F.R. § 3.317. The Veteran's service treatment reports show that in May 1986, he was treated for a left lower extremity injury. The injury was described as a 1.5-inch laceration. The assessment was infected wound. In August 1987, he was treated for complaints of a twisted right ankle after he stepped in a hole during physical training. On examination, the ankle had a full range of motion. The assessment was ankle strain. In March 1989, he was treated for complaints of numbness and tingling in his left foot, with an onset while standing in formation at parade practice the day before. A December 1989 "physical examination report for motor vehicle operators" notes that the Veteran had a full range of motion in his upper and lower extremities, and that there was no evidence of disease or injury. In June 1990, he was treated for complaints of low back pain. He denied a history of trauma. The assessment was mild mechanical back pain. In December 1991, he was treated for complaints of a 11/2 -week history of low back pain related to pulling a deer while hunting. He denied a history of previous trauma or injury. The assessment was MLBP (mechanical low back pain) with spasms. Dental health questionnaires, dated in January 1989, January and September of 1990, and January 1992, all show that the Veteran indicated that he did not have a history of arthritis, or painful joints. The Veteran's separation examination report, dated in September 1992, shows that his spine, and upper and lower extremities, were clinically evaluated as normal. The report is somewhat difficult to read, but appears to note a history of ankle symptoms, and back muscle strain, most recently in December 1991, which had "healed well." As for the post-service medical evidence, it consists of VA and non-VA reports, dated between 2004 and 2013. Private treatment reports show that in January 2008, the Veteran complained of left foot pain and numbness. On examination, he was noted to have "significant pes planus" in his feet. The impressions included pes planus. In February 2008, he received additional treatment for what was described as a one-month history of left foot paresthesias. His medical history was noted to be "non-contributory." X-rays were taken. The impressions noted partially-compensated metatarsus adductus, with secondary paresthesias. He received follow-up treatment through May 2008. VA progress notes, dated between 2010 and 2013, show that the Veteran was noted to have a history that included chronic lumbosacral strain and DJD (degenerative joint disease) of the lumbosacral spine, foot problems, and chronic tendonitis of the knees. Between 2012 and 2013, he complained of numbness and tingling in his feet and/or all four extremities, particularly when riding his motorcycle. A December 2012 EMG (electromyogram) notes cervical radiculopathy, and mild CTS (carpal tunnel syndrome). A February 2013 EMG notes cervical radiculopathy, and some bilateral sensory median mononeuropathy. A VA spine examination report, dated in September 2009, shows that the examiner stated that the Veteran's claims file had been reviewed. The Veteran reported that he had fallen off of a dump truck during service, with back pain "throughout the years," and that he currently had daily low back pain. He stated that he had a post-service employment history of 12 years as a truck driver. An associated X-ray report for the lumbar spine contains an impression of degenerative change; the report notes minimal anterior lipping of L4 and L5 with narrowing of the L4-L5 and L5-S1 intervertebral disc spaces. An associated X-ray report for the thoracic spine notes a normal examination. The relevant diagnosis was chronic lumbosacral strain, with degenerative changes of the lumbosacral spine. The examiner concluded that it is less likely as not that the Veteran's current low back condition is a result of the one episode of diagnosed muscle strain during active service, and that it is more likely than not that his condition is a result of normal age progression. A VA general medical examination report, dated in September 2009, shows that the examiner stated that the Veteran's claims file had been reviewed. The Veteran reported that he had a post-service employment history of 12 years as a truck driver, and a history of driving tractor trailers over the road for many more years prior to that period. It was noted that he was claiming to have symptoms that included joint pain due to "Gulf War Illness." He complained of current symptoms that included chronic knee stiffness. An associated X-ray report for the knees contains an impression noting that "no bony abnormality is seen." The relevant diagnosis was chronic tendonitis of the bilateral knees. The examiner noted that with the exception of gastrointestinal symptoms which required further development, he did not have an undiagnosed illness consistent with Gulf War Syndrome. A VA ankle DBQ, dated in April 2013, shows that the examiner indicated that the Veteran's claims file had been reviewed. The Veteran reported that he had fallen into a hole during service in the 1980s, and that he had a history of numerous injuries to both ankles "over the years." He stated that he must wear high-top boots because during work he has to climb into and out of trucks, including tankers. The diagnosis was right ankle grade I strain. The examiner concluded that it is less likely than not that any recurrent or chronic right ankle strains are related to his "one minor soft tissue injury to [the] right ankle during his military service." The examiner explained the following: the Veteran had sustained a minor grade I right ankle sprain in 1987, with no further right ankle complaints during service, and this condition was noted as "resolved" in his September 1992 separation examination report. Following service, there are no complaints of right ankle pain or instability, and the Veteran did not report right ankle symptoms during his September 2009 VA examination. With regard to the left ankle, the examiner noted that there were no injuries to the left ankle during service; there was no left ankle diagnosis. A VA Gulf War general medical DBQ, dated in April 2013, shows that the examiner indicated that the Veteran's claims file had been reviewed. The Veteran complained of symptoms that included joint pain. The examiner noted that service connection was in effect for irritable colon, posttraumatic stress disorder, hearing loss, and tinnitus. The examiner concluded that there are no undiagnosed illnesses, or diagnosed medically unexplained chronic multi-symptom illnesses. The examiner stated that the Veteran's riding a motorcycle could contribute to his CTS, that his degenerative disc disease of the lumbar spine can contribute to his lower extremity numbness, and that his cervical spine more than likely has some degeneration due to the Veteran's history of four MVAs (motor vehicle accidents). A VA fibromyalgia DBQ, dated in April 2013, shows that the examiner indicated that the Veteran's claims file had been reviewed. The Veteran complained of multiple joint pain (back, hips, knees, feet, ankles, hands, wrists, shoulders, neck and head) since 1998, and chronic tenderness since 1998, "possibly earlier." The diagnosis was fibromyalgia. An associated X-ray report for the right ankle contains an impression noting that no significant bony abnormality could be identified. An associated X-ray report for the left ankle contains an impression noting that there is no evidence of acute bony injury, and that no significant bony abnormality could be identified. A. Low Back The Veteran's service treatment reports show that in June 1990, he was noted to have mild mechanical back pain, and in December 1991, he was noted to have mechanical low back pain with spasms. The Veteran's September 1992 separation examination report shows that his spine was clinically evaluated as normal, and appears to note a history of back muscle strain, most recently in December 1991, which had "healed well." The next relevant medical evidence, following separation from service, is dated about 18 years later. Specifically, the September 2009 VA examination report shows that he was found to have chronic lumbosacral strain, with degenerative changes of the lumbosacral spine. There is no competent evidence to show that the Veteran has a low back disability that is related to his service. The only competent opinions are found in the September 2009 and April 2013 VA examination/DBQ reports, and these opinions weigh against the claim. These opinions are considered to be highly probative, as they are shown to have been based on a review of the Veteran's claims files, and they are accompanied by sufficient explanations. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion); Neives- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Finally, there is no competent evidence to show that arthritis of the low back was manifested to a compensable degree within one year of separation from service. See 38 C.F.R. §§ 3.307, 3.309. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. B. Left Ankle With regard to the claim for a left ankle disability, the Veteran's service treatment reports do not show any relevant complaints, or diagnoses. Similarly, the post-service medical evidence does not show that the Veteran has ever been treated for left ankle symptoms, or diagnosed with a left ankle disorder. In this regard, an April 2013 X-ray of the left ankle did not result in a diagnosis, and the report states that there is no evidence of acute bony injury, and that no significant bony abnormality could be identified. Accordingly, the Board finds that the preponderance of the evidence shows that the Veteran does not have a left ankle disability, and that the claim must be denied. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (under 38 U.S.C.A. §§ 1110 and 1131, an appellant must submit proof of a presently existing disability resulting from service in order to merit an award of compensation). C. Right Ankle With regard to the claim for a right ankle disability, the Veteran's service treatment reports show that in August 1987, he was treated for complaints of a twisted right ankle, and that the assessment was ankle strain. This appears to have been an acute condition, as evidenced by the fact that there was no subsequent treatment during service, a period of over five years. In this regard, service treatment reports dated after August 1987 indicate that a right ankle symptoms were not present. See December 1989 "physical examination report for motor vehicle operators" (noting that the Veteran had a full range of motion in his upper and lower extremities, and that there was no evidence of disease or injury); dental health questionnaires, dated in January 1989, January and September of 1990, and January 1992 (showing that the Veteran indicated that he did not have a history of arthritis, or painful joints). In addition, the Veteran's September 1992 separation examination report showed that his lower extremities were clinically evaluated as normal. It also noted that his ankle condition was "resolved." The Veteran is not shown to have been diagnosed with a disorder listed at 38 C.F.R. § 3.309(a) in association with this claim, and the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a). Walker. Furthermore, the earliest post-service medical evidence of a right ankle disability is dated no earlier than 2010, which is about 19 years after separation from service. There is no competent evidence to show that the Veteran has a right ankle disability that is related to his service. The only competent opinion is found in the April 2013 VA examination/DBQ report, and this opinion weighs against the claim. This opinion is considered to be highly probative, as it is shown to have been based on a review of the Veteran's claims files, and it is accompanied by a sufficient explanation. Prejean; Neives- Rodriguez. In this regard, the Veteran has reported a long history of post-service employment as a truck driver, and that he must wear high-top boots because during work he has to climb into and out of trucks, and during his April 2013 VA examination he stated that he had a history of numerous injuries to both ankles "over the years." Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. D. Bilateral Feet With regard to the claim for a bilateral foot disabilities, the Veteran's service treatment reports show that in March 1989, he was treated for complaints of numbness and tingling in his left foot, with no diagnosis. This appears to have been an acute condition, as evidenced by the fact that there was no subsequent treatment during service, a period of over 31/2 years, and that the Veteran's September 1992 separation examination report showed that his feet were clinically evaluated as normal. With regard to the right foot, there is no evidence to show complaints of, treatment for, or a diagnosis of, a right foot disorder during service. For both feet, the Veteran is not shown to have been diagnosed with a disorder listed at 38 C.F.R. § 3.309(a) in association with this claim, and the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a). Walker. The earliest post-service medical evidence of a foot disability is dated no earlier than 2008, which is about 17 years after separation from service. There is no competent evidence to show that the Veteran has a foot disability that is related to his service. Accordingly, the Board finds that the preponderance of the evidence is against the claims, and that the claims must be denied. E. Joint Pain With regard to the possibility of service connection on a direct basis (i.e., other than as due to an undiagnosed illness), VA generally does not grant service connection for symptoms which have not been associated with trauma or a disease process. See e.g., Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) ("pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted."); dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). The Veteran's service treatment reports do not show complaints of, treatment for, or a diagnosis of, multi-joint pain, nor do they indicate that he was found to have a disability manifested by multiple joint pain. Therefore, a relevant chronic condition is not shown during service. See 38 C.F.R. § 3.303(a). In addition, there is no competent evidence to show that the Veteran has a diagnosed disorder manifested by multiple joint pain, or that such a disorder is related to his service. Accordingly, the Board finds that the preponderance of the evidence is against the claim on a direct basis, and that the claim must be denied. The Veteran's primary contention is that service connection is warranted for joint pain as due to an undiagnosed illness, to include as due to vaccinations or medications provided to him prior to service in Desert Storm. With regard to the application of 38 C.F.R. § 3.317, the Board finds that the preponderance of the evidence is against the claim that the Veteran has joint pain due to an undiagnosed illness or a medically unexplained chronic multisymptom illness. The September 2009 and April 2013 VA examination/DBQ opinions show that the examiners stated that the Veteran does not have an undiagnosed illness, and the April 2013 report shows that the Veteran was determined not to have a diagnosed medically unexplained chronic multi-symptom illnesses. These opinions are considered highly probative, as the examiner's opinions are shown to have been based on a review of the Veteran's claims file. Prejean. To the extent that he is shown to have bilateral chronic tendonitis of the knees, lumbar spine and right ankle disorders, cervical radiculopathy, and carpal tunnel syndrome, these are diagnosed conditions, and service connection therefore may not be granted for these symptoms on this basis. Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006); Gutierrez v. Principi, 19 Vet. App. 1, 10 (2004). Given the foregoing, the Board finds that the Veteran is not shown to have a "qualifying chronic disability" involving the claimed symptoms. See 38 C.F.R. § 3.317(a)(2)(i). Accordingly, the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 are not applicable. Based on the foregoing, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied on any basis. F. Conclusion With regard to the appellant's own contentions, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, they falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this regard, the Veteran has been shown to have arthritis of the lumbar spine, and degenerative joint disease is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding their etiology, as the evidence shows that X-ray studies and other specific findings is needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Veteran is similarly not competent to state whether or not he has an undiagnosed illness, and whether any of the claimed conditions are related to his service. The Veteran's service treatment reports and post-service medical records have been discussed. The Board has determined that the Veteran is not shown to have a left ankle disability, and that he is not shown to have an undiagnosed illness or a diagnosed medically unexplained chronic multi-symptom illness. Etiological opinions have been obtained that weigh against the claims for the low back, and the right ankle. There is no competent evidence in support of the claim for a bilateral foot disability. Given the foregoing, the Board finds that the medical evidence outweighs the appellant's contentions to the effect that he has the claimed conditions due to his service. Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997). The Board has considered the doctrine of reasonable doubt, however, as is stated above, the preponderance of the evidence is against the appellant's claims, and the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. The Veterans Claims Assistance Act of 2000 (VCAA) The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in March 2009. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The RO has obtained the Veteran's VA and non-VA medical records. With regard to the claims for a back and ankle disabilities, and the claim based on an undiagnosed illness, the Veteran has been afforded examinations, and etiological opinions have been obtained where appropriate. With regard to the claim for foot disabilities, the Veteran has not been afforded an examination. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifest during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. The Veteran's service treatment reports have been discussed, they show one treatment for the left foot, with no reported trauma and no diagnosis, no treatment for the right foot. In addition, the post-service medical evidence does not show any relevant complaints, treatment, or diagnoses of a foot disability, providing evidence against the claims. There is no competent evidence to show that the Veteran has a foot disability that is related to service. Therefore, the second McLendon criterion are not satisfied for the right foot, and the third McLendon criterion are not satisfied for either foot, and an examination and etiological opinions need not be obtained. McLendon; see also 38 C.F.R. § 3.159(c)(4) (2013); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). In March 2013, the Board remanded these claims. The Board directed that the RO or the AMC should undertake appropriate development to obtain any outstanding, pertinent medical records, to specifically include those private medical records identified by the Veteran at his December 2011 Board hearing. In April 2013, the Veteran was sent a duty-to-assist letter that was incompliance with the Board's remand, and which requested the Veteran to identify any relevant private health care treatment which was not currently of record. However, there is no record of a response. In addition, VA reports, dated to 2013, were obtained and have been associated with the claims file. The Board further directed that the Veteran should be afforded a VA examination to determine the nature and etiology of any currently present right ankle disability, and any currently present generalized muscle and joint pain. In April 2013, this was done, and to the extent that a physician did not perform the examinations, the examiner's competence is presumed. See Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2009) (applying the presumption of regularity to the competence of VA examiners). Under the circumstances, the Board finds that there has been substantial compliance with its remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER The appeal is denied. REMAND In August 2010, the RO granted the Veteran's claim for PTSD, and assigned an evaluation of 30 percent. The Veteran was notified of this decision by way of a cover letter, dated August 27, 2010. On August 25, 2011, the Veteran filed a notice of disagreement on the issue of entitlement to an initial evaluation in excess of 30 percent for service-connected PTSD. A statement of the case has not yet been issued as to this claim. Because a timely NOD was filed to the August 2010 rating decision, see 38 C.F.R. § 20.302(a) (2013), the RO must now provide the Veteran with a statement of the case on the issue of entitlement to an initial evaluation in excess of 30 percent for service-connected PTSD. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: Issue a statement of the case with respect to the issue of entitlement to an initial evaluation in excess of 30 percent for service-connected PTSD. The Veteran should be advised that he may perfect his appeal of this issue by filing a Substantive Appeal within 60 days of the issuance of the Statement of the Case. See 38 C.F.R. § 20.302(b). The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs