Citation Nr: 1334438 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 08-00 106 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a left knee disorder, to include as secondary to a service-connected disability. 2. Entitlement to service connection for a back disorder, to include as secondary to a service-connected disability. 3. Entitlement to a higher initial rating (evaluation) greater than 10 percent for a collapsed arch of the left foot. 4. Entitlement to an effective date earlier than October 15, 2009, for the grant of a total disability rating due to individual unemployability (TDIU) resulting from service-connected disabilities. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from March 1953 to February 1955 and had subsequent service in the Army Reserves from December 1959 to March 1961. These matters come before the Board of Veterans Appeals (Board) on appeal from various rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) initially from Cleveland, Ohio and thereafter in Detroit, Michigan. In an April 2007 rating decision, the Cleveland RO denied service connection for bilateral knee and back disorders. Thereafter, the Veteran perfected appeals of these issues. In an April 2008 rating decision, the Detroit RO granted service connection for arthritis with knee joint replacement for the right knee and assigned a 30 percent disability evaluation, effective January 19, 2006, the date of receipt of the initial claim. In a July 2008 rating decision, the Detroit RO denied a claim for a TDIU. In a September 2009 rating decision, the Detroit RO granted service connection for a collapsed arch of the left foot as secondary to the service-connected right knee disorder and assigned a noncompensable disability evaluation. The Veteran subsequently perfected an appeal as it related to the assigned disability evaluation. In an August 2010 rating decision, the RO increased the Veteran's disability evaluation for right knee replacement from 30 to 60 percent and assigned an effective date of October 15, 2009. The RO also granted TDIU at that time and assigned an effective date of October 15, 2009. The Veteran subsequently perfected an appeal of the issue of entitlement to an effective date earlier than October 15, 2009, for TDIU. In a May 2013 decision, the Board remanded these matters for additional development. Such development has been conducted and the appeals are again before the Board. Following additional development, the Appeals Management Center issued a rating decision in July 2013 granting a 10 percent initial rating for the Veteran's service-connected collapsed arch of the left foot, effective September 30, 2008 - throughout the initial period on appeal. As this was only a partial grant, the matter remains on appeal and is properly before the Board. A review of the Virtual VA paperless claims processing system reveals that the system includes documents that relate to the immediate appeals. The documents are considered to be part of the claims file, and as such have been considered as part of the present appeals. Please note 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 issue of TDIU 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. Throughout the entire initial rating period, collapsed arch of the left foot has been productive of pain on use and manipulation. 2. The Veteran had a right knee injury in service, which is service-connected. 3. The Veteran does not have any disorder of the back which is etiologically related to service, to include related to an in-service right knee injury. 4. The Veteran does not have any disorder of the back which is etiologically related to a service-connected disability, or that has been permanently worsened by a service-connected disability. 5. The Veteran does not have any disorder of the left knee which is etiologically related to service, to include related to an in-service right knee injury. 6. The Veteran does not have any disorder of the left knee which is etiologically related to a service-connected disability, or that has been permanently worsened by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for collapsed arch of the left foot have not been met or more nearly approximated at any time during the initial rating period on appeal. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.71a, Diagnostic Code 5276 (2013). 2. A back disorder was not incurred in service, and is not proximately caused or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). 2. A left knee disorder was not incurred in service, and is not proximately caused or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013). VCAA notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO provided VCAA notice letters to the Veteran in January and March 2006, prior to the initial adjudication of the claims on appeal. The letters notified the Veteran of what information and evidence must be submitted to substantiate the claims, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claims to the RO. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The notice requirements of the VCAA apply to all 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. In this case in the January and March 2006 letters, the Veteran was provided with such notice, including the type of evidence necessary to establish a disability rating and effective dates. The Veteran's appeal related to the establishment of an earlier effective date for TDIU arises from an appeal of the initial grant of TDIU - related to the grant of service connection for the right knee and subsequent evaluation. Similarly, the Veteran's appeal for a higher initial rating for a left foot disability arises from an appeal of the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims). To the extent that the Veteran's original claim of TDIU may construed as a claim for an increased evaluation rather than a claim for a higher initial evaluation of his right knee disability, the Federal Circuit has interpreted the Dunlap and Hartman decisions to mean that VCAA notice is not required in the case of an appeal of an effective date assigned when an increased rating has been granted. See Sanford v. Peake, No. 2006-7371 (Fed. Cir. Jan. 15, 2008); 2008 WL 275886 (Fed.Cir.). Based on the foregoing, adequate notice was provided to the Veteran with regard to the issues of TDIU and a higher initial rating for a left foot disability prior to the transfer and certification of this case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and no further notice is needed under VCAA. Next, VA has a duty to assist a veteran in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012); see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . must be sought - only those that are relevant to the veteran's claim"). According to an August 2006 notice sent to the Veteran, it has been determined that the Veteran's records are "fire-related," indicating that some service treatment records may have been destroyed in a 1973 fire at the National Personnel Records Center (NPRC) in St. Louis, Missouri. In the August 2006 notice letter, the Veteran was asked to provide VA with any potentially relevant records in his position - in response to which the Veteran has submitted records relating to post-service treatment and statements from friends and family members regarding in-service injuries. The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The analysis below has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). While service records cannot be obtained, records of private and VA treatment have been associated with the claims file. These pertinent records have been associated with the Veteran's claims file and reviewed in consideration of the issues before the Board. The Veteran has been afforded several VA examinations including those of March 2008, June 2013 and August 2013. During these examinations, examiners conducted physical examinations of the Veteran, reviewed the claims file, took down the Veteran's history, considered private medical evidence, considered the lay evidence presented, laid factual foundations for the conclusions reached, and reached conclusions and offered opinions based on history and examination that are consistent with the record. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2012); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion). The Board finds that all necessary development has been accomplished. In addition to the evidence discussed above, the Veteran's statements in support of the claims are also of record. The Board has carefully considered such statements and concludes that no available outstanding evidence has been identified. Additionally, the Board has reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. For these reasons, the Board finds that the duties to notify and assist the Veteran in the development of these claims have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. 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). Initial Rating for Collapsed Arch of the Left Foot Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2013). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's appeal for a higher initial rating for a collapsed arch of the left foot grows out of an appeal from the initial assignment of a disability rating in September 2009. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). Here, as the evidence discussed below shows, the left foot disability has not significantly changed and a uniform evaluation is warranted. In the September 2009 rating decision on appeal, the Veteran was awarded service connection for a collapsed arch of the left foot and granted an initial noncompensable (zero percent) evaluation. In a subsequent July 2013 rating decision, an initial evaluation of 10 percent was granted, effective September 30, 2008 - the beginning of the initial rating period on appeal. The Veteran's left foot disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC or Code) 5276. Under this Code, the current 10 percent rating contemplates moderate flatfoot with weight-bearing line over or medial to the great toe, inward bowing of the atendo achillis, pain on manipulation and use of the feet, bilateral or unilateral. 38 CFR § 4.71a, DC 5276 (2013). Severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, is rated 20 percent disabling for unilateral disability, and is rated 30 percent disabling for bilateral disability. Id. Pronounced flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo achillis on manipulation, that is not improved by orthopedic shoes or appliances, is rated 30 percent disabling for unilateral disability, and is rated 50 percent disabling for bilateral disability. Id. Normal ranges of motion of the ankle are dorsiflexion from zero degrees to 20 degrees, and plantar flexion from zero degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2013). In addition, when assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA is generally required to consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when symptoms are most prevalent ("flare-ups") due to pain, weakness, premature or excess fatigability, and incoordination. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. With respect to the rating under Diagnostic Code 5276, the Court has held that where a Diagnostic Code is not predicated on a limited range of motion alone, the provisions of 38 C.F.R. §§ 4.40 and 4.45 do not apply. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Furthermore, to the extent that 38 C.F.R. §§ 4.40 and 4.45 require that ratings are based in part on functional loss of use or loss of motion due to pain, DC 5276 already calls for consideration of pain on manipulation and use of the feet. The Board has reviewed all of the lay and medical evidence in the claims folder and finds that the Veteran is competent to report many of the symptoms and impairments associated with the left foot including symptoms which are observable such as pain in the foot. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (holding that lay statements may serve to support a claim by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability that are susceptible of lay observation). The Board has not discounted any lay evidence regarding the severity of the left foot merely because it is lay evidence or because it was reported by the Veteran. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (holding that a history given by a veteran that has not been found by the Board to be inaccurate is not a basis for discounting an opinion based on that history). That being said, the Board has an obligation to determine the credibility of all evidence, lay and medical. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the duty to assess the credibility and weight to be given to the evidence). After reviewing the entire claims file, the Board finds that the Veteran's collapsed arch of the left foot has been not more than 10 percent disabling during any portion of the period on appeal. The Board finds that the collapsed arch of the left foot has been productive of pain on use and manipulation. On VA treatment in September 2008, the Veteran reported a three week history of pain in the arch of the left foot. The Veteran used a cane, but only to get up and not for walking. Examination revealed that the medial arch was lower on the left foot, with greater valgus deformity on the left. Treatment included a prescription for molded shoe inserts. On followup VA podiatry appointment in January 2009, the Veteran reported having no problems with the shoes which had been prescribed. Plantarflexed metatarsals one through five were flexible, and the prescription for insoles and shoes was renewed. On VA podiatry treatment in October 2009, the Veteran's chief complaint was of pain in the feet. The Veteran reported that pain increased when not wearing the prescribed shoes at home, and reported cramping in the feet at night. Objective examination revealed no corns or calluses, and no ulcers or breaks in the skin barrier. Tenderness was present under the fibular sesamoid on the first right metatarsal head, and higher arches in the feet were still present with full weight bearing. It was noted that the diabetic shoes the Veteran wore did not properly support the feet, and the Veteran was given new shoe inserts to address the problem. A January 2010 VA podiatry note indicated that the Veteran was still having pain in the feet and legs with muscle cramping, although magnesium tablets helped. The Veteran reported pain in both feet and asked to receive new shoes and inserts as the shoe inserts provided in October 2009 were not well tolerated. On VA examination in June 2013, the examiner identified degenerative arthritis as the diagnosis associated with the Veteran's flatfoot. The Veteran had pain in the left foot; however, pain was not associated with manipulation of the foot. There was no swelling on use, characteristic calluses, no evidence of marked pronation of the foot, and the weight-bearing line did not fall over or medial to the great toe. The Veteran did not have inward bowing of the Achilles' tendon, or marked inward displacement and severe spasm of the Achilles tendon on manipulation. The Veteran had no other pertinent physical findings, complications, conditions, signs and/or symptoms related to degenerative arthritis of the left foot. A cane or walker was regularly used for prolonged ambulation. The examiner indicated that symptoms were relieved by arch supports, and the examiner opined that left foot flatfoot did not impact the Veteran's ability to work. The June 2013 VA examiner described left foot impairment as "mild," noting that radiological examination had revealed mild degenerative changes at the first metatarsophalangeal joint and "a tiny plantar calcaneal spur." On VA examination in August 2013, the VA examiner was asked to comment on what the RO described as a prior diagnoses of hallux valgus deformity and plantar fasciitis, and to state if symptoms were mild, moderate or severe. The August 2013 VA examiner noted that the record did not indicate prior diagnoses of hallux valgus deformity or plantar fasciitis of the left foot and that June 2012 radiological evidence did not show evidence any hallux valgus deformity or pes planus. The VA examiner consulted with a VA podiatrist who had treated the Veteran, and it was confirmed that the Veteran does not have pes planus or hallux valgus. The VA podiatrist also noted that the Veteran refused his arch supports in 2012. The examiner recommend that a VA examination should be conducted by a podiatrist prior to the left foot being rated. The examiner concluded that it "is my medical opinion and the opinion of the VA podiatrist aforementioned that the veteran does not have pes planus." The Board has reviewed this VA examination, and finds that in concert with the prior examination, a new VA examination from a podiatrist is unnecessary in order to properly rate the Veteran's service-connected left foot. Specifically, both examinations of the Veteran has included in-person evaluations of the Veteran's foot, consideration of the Veteran's statements regarding functioning, and consultation with a specialist. Based on the adequate VA examinations with adequate findings and well-reasoned conclusions reached, an additional examination is not necessary. Based on the foregoing, the Board finds that the Veteran's left foot has been not more than 10 percent disabling throughout the initial period on appeal. As stated above, in order to warrant a 20 percent rating, the evidence must show severe flatfoot, with objective evidence of marked deformity, pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. 38 CFR §4.71a, DC 5276. In this case the Veteran's left foot has been painful, but impairments have been mild according to VA examiners. Furthermore, the evidence specifically indicates that the criteria for a 20 percent rating are not present. The Veteran has contended that his left foot is painful and that pain is not relieved for arch supports including in a statement of October 2010. Under DC 5276, unilateral flatfoot may warrant a 30 percent rating on evidence of that symptoms of pronounced flatfoot are not improved by orthopaedic shoes or appliances. The Veteran is competent to state that he does not find relief from symptomatology through the use of orthopaedic shoes or appliances, as relief from physical symptoms is capable of lay-observation. Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran was first prescribed orthopaedic devises in September 2008, and on followup in January 2009 the Veteran reported having no problems with shoes which had been prescribed and the prescription was renewed. In October 2009 the Veteran stated that pain in his feet increased when not wearing his prescribed footwear around the home, and it was recommended that the Veteran avoid removing the footwear. In a January 2010 VA treatment note, the Veteran endorsed not tolerating the shoe inserts, and asked for new ones. At the time of the June 2013 VA examination regarding the left foot, the examiner indicated, after an in -person examination, that the Veteran's symptoms were relieved by arch supports (or built up shoes or orthotics. The Board finds that the weight of the lay and medical evidence does not demonstrate that there are symptoms of pronounced flatfoot that are not improved by orthotics which would warrant the assignment of a 30 percent rating. While the January 2010 VA treatment record shows that the Veteran reported a problem tolerating the shoe inserts, the weight of the evidence shows that the footwear show that footwear did relieve symptoms and the weight of the evidence does not demonstrate pronounced symptoms not improved by orthotics. In evaluating the Veteran's left foot disability, the Board has also considered whether a higher initial rating may be warranted under a different Diagnostic Code, but finds that one is not. The only rating criteria which provide a rating of greater than 10 percent for the feet are for malunion or nonunion of tarsal or metatarsal bones (DC 5283), pes cavus (DC 5278), and for other foot injuries not listed elsewhere (DC 5284). The evidence specifically shows, however, that the Veteran does not have malunion or nonunion of tarsal or metatarsal bones or pes cavus, and the June 2013 VA examiner indicated that other than flatfoot the Veteran had no other pertinent physical findings, complications, conditions, signs, or symptoms related to the left foot. The Board concludes that the Veteran's collapsed arch of the left foot has been 10 percent disabling throughout the entire initial rating period on appeal. As the preponderance of the evidence is against the claim, there is no doubt to be resolved. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration The Board has also considered whether referral for an extraschedular rating is warranted for service-connected collapsed arch of the left foot. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Here the schedular rating criteria used to rate the left foot above, reasonably describe and assess the Veteran's disability level and symptomatology. The criteria rate the disability on the basis of malformation (flatfoot with weight-bearing line over or medial to the great toe, inward bowing of the atendo Achillis) and pain on use; thus, the demonstrated manifestation - namely painful left foot - is contemplated by the provisions of the rating schedule. The schedular rating criteria also include analogous symptoms that are "like or similar to" listed schedular rating criteria. Mauerhan, 16 Vet. App at 442 ; see also 38 C.F.R. § 4.21 (2013). Thus, to the extent that the Veteran presented as using a cane or walker when ambulating for extended periods on VA examination in June 2013, the Board finds that pain when walking is considered analogous and part of the criteria of pain on manipulation and use under DC 5276. As the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate. For these reasons, the Board finds that the schedular rating criteria is adequate to rate the Veteran's collapsed arch of the left foot, and referral for consideration of an extra-schedular evaluation is not warranted. Entitlement to Service Connection, Generally The Veteran is seeking service connection for a low back disorder and a left knee disorder; both, to include as secondary to a service-connected disability. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The term "active military, naval, or air service" includes active duty, any reserve service periods of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of or inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. §§ 101(22), 101(24) (West 2002); 38 C.F.R. § 3.6 (2013). Service connection for INACDUTRA is permitted only for injuries, not diseases, incurred or aggravated in line of duty. See Brooks v. Brown, 5 Vet. App. 484, 485 (1993). VA's General Counsel has interpreted that it was the intention of Congress when it defined "active service" in 38 U.S.C.A. § 101(24) to exclude inactive duty training during which a member was disabled or died due to nontraumatic incurrence or aggravation of a disease process. VAOPGCPREC 86-90. The Veteran's current back disorder is degenerative arthritis, while service connection is also being sought for a left knee replacement following the onset of osteoarthritis of the left knee. Arthritis is a "chronic disease" which is listed under 38 C.F.R. § 3.309(a); therefore the presumptive provisions of 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. In order to show a "chronic" disease in service, the record must reflect a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Where a chronic disease has been incurred in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required in order to establish entitlement to service connection. 38 C.F.R. § 3.303(b). Presumptive periods do not apply to reserve service periods of ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Therefore, consideration of 38 C.F.R. §§ 3.307 and 3.309 (presumption of service incurrence for certain disease) for the Veteran's period of ACDUTRA or INACDUTRA is not appropriate. However, where a veteran served ninety days or more of active service, and certain chronic diseases, including arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such 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, 1113, 1137 (West 2002); 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. Id. Except as provided in 38 C.F.R. § 3.300(c), a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a) (2013). This includes any increase in disability (aggravation) that is proximately due to or the result of a service connected disease or injury. See 38 C.F.R. § 3.310(b) (2013). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by service. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen, supra. In this case in order to warrant service connection for the low back or left knee on a secondary basis, the evidence must show that one or both disorders was caused or aggravated by a service-connected disease or injury. The Veteran is currently service-connected for right knee arthritis with joint replacement, dysthymic disorder, bilateral tinnitus, collapsed arch of the left foot associated with arthritis of the right knee, and bilateral hearing loss. Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). While arthritis is not capable of direct lay observation, the symptoms of arthritis such as pain and limitation of motion are capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d 1372, 1376-77. Additionally, a lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. Id. A layperson is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). See 38 C.F.R. § 3.159(a)(2). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Court has held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Court has also stated, "[i]t is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. The Veteran does not allege that the claimed disorders of the low back and left knee occurred as a result of combat against enemy forces and the claims file does not support such a finding. For these reasons, the Board finds that the provisions of 38 U.S.C.A. § 1154(b) (West 2002) are not for application. Service Connection for a Back Disorder The Board finds that the Veteran did not sustain a disease or injury related to the back in service. The Veteran's service records are unavailable for review. Nonetheless, the Veteran has contended that the current low back disorder is secondary to a service-connected right knee injury. To that end, while the Board accepts that the Veteran injured the right knee in service (specifically during a climbing exercise in Colorado), the Veteran's back was not injured during service. The Board finds that the Veteran does not have a back disorder which is etiologically related to service, to include in-service right knee injury or service-connected left flatfoot. The Board also finds that the Veteran does not have a back disorder which is related to service-connected right knee arthritis with joint replacement. X-ray imaging at a VA facility in February 2008 showed narrowing of the disc space at L3-4, L4-5 and L5-S1. No acute fracture or dislocation was evident and there was some mild rotation deformity in the lumbar spine. On VA examination in March 2008, the Veteran reported that he had no back injury during service and that back pain onset in 1985, 30 years after the Veteran left active service. The examiner reviewed and considered the Veteran's claims file and conducted a physical examination. The examiner then opined on the basis of consideration of the claims file and examination that multilevel degenerative disc disease of the lumbar spine was not due to or a result of a bilateral knee disorder, but rather was due to aging. On VA treatment of the left foot in September 2008, the evaluating healthcare provider noted that the Veteran's low back pain was "consistent with deformities in the foot." Imaging of the back done at a VA facility in January 2010 showed disc desiccation throughout the lumbar spine. The vertebral body and disc space heights were preserved. The impression was multilevel spine degenerative changes of the spine, without significant central canal or neuroforamina stenosis. In December 2009 the Veteran returned to the VA for a followup regarding the left foot. It was reported that the Veteran had "significant disability" secondary to herniated disc with disc degeneration and multiple disc bulges which resulted in difficulty ambulating. On VA treatment in June 2010, the Veteran complained of a long standing history of low back pain which had been ongoing since "around 1956." The Veteran endorsed a history of falls, secondary to tripping. The Veteran reported difficulty driving secondary to knee and back pain, and that back pain increased with increased activity. On VA examination in June 2013, a VA examiner opined that the Veteran's low back disorder was less likely than not incurred in or caused by an in-service injury, event or illness. In so finding the examiner stated that degenerative arthritis was a normal part of the aging process, and noted that the Veteran was 80 years of age. The examiner went on to indicate that the Veteran's back disorder was not aggravated beyond its natural progression by service-connected right knee or left foot disorders. On VA examination in August 2013, the examiner opined that the Veteran's low back disorder was less likely than not proximately due to or the result of a service-connected disability. The examiner noted that the diagnosed mild degenerative lumbar spondylosis involving the facet joints in and marginal osteophytes are not causally related to or aggravated by the service-connected right knee. The examiner reiterated previous opinions indicating evidence seen on radiological examinations shows degenerative changes which are consistent with the aging process, and noted that the Veteran was 80 years of age. The examiner went on to state that the medical evidence of record did not show that the Veteran was compensating on the left side due to his right knee, noting also that the left knee prosthesis was not installed until 1999, 44 years after discharge from service. Furthermore, radiological evidence showed that the femoral condylar and tibial prosthesis were in satisfactory alignment, without evidence of loosening. With regard to the Veteran's June 2010 endorsement of the onset of low back pain "around 1956," the Board finds the Veteran to be not credible. Back pain is capable of lay observation, and thus the Veteran is competent to make such an endorsement Layno, 6 Vet. App. 465. However, this single statement is the only such endorsement of record where the Veteran has indicated that low back pain began soon after service in spite of voluminous communications with VA. Furthermore, in March 2008 the Veteran endorsed a 1985 onset of back pain, 30 years after separation. Given these inconsistencies, the Board finds the Veteran's endorsement of onset of back pain in 1956 to be not credible and of no probative value. Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (holding that inconsistencies in lay statements may be considered in the Board's determination of credibility). The Veteran's primary contention through the claim and appeal process has been that the current back disorder is as a result of uneven weight bearing throughout the Veteran's life associated with his service-connected right knee arthritis. The Veteran is not competent, however, to provide an opinion on the current back disorder is related in any way to the service-connected right knee as this is well beyond the realm of a lay-observable fact. Jandreau at 1376-77. (a lay person may speak to etiology in those limited circumstances where a nexus is obvious merely through observation, such as a fall leading to a broken leg). In a February 2009 statement in which the Veteran indicated that the VA physician who had prescribed shoe inserts to treat the left foot said that left foot symptomatology increased the Veteran's back pain. The Board recognizes that in September 2008 a VA physician indicated that it was likely that compensation over time related to the right knee had caused the collapse of his left arch and that low back pain was "consistent with deformities in the foot." However, the treating physician did not arrive at this conclusion with the benefit of review of the claims file or on consultation of such diagnostic records as X-ray imaging. Accordingly, the opinion is afforded less probative value than the conclusions reached on VA examination following physical evaluation of the Veteran and review of the claims file. Specifically such conclusions include the March 2008 VA examiner's opinion that multilevel degenerative disc disease of the lumbar spine was not due to or a result of a bilateral knee disorder, but rather was due to aging; the June 2013 VA examiner's opinion that the back disorder was less likely than not incurred in or caused by the claimed in-service injury, event or illness and that the Veteran's back disorder was not aggravated beyond its natural progression by service-connected right knee or left foot disorders; and the August 2013 VA examiner's opinion that low back disorder was less likely than not proximately due to or the result of a service-connected disability. Thus, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection for a Left Knee Disorder The Veteran's primary contention is that a service-connected right knee injury caused the Veteran to place additional weight on the left knee, and that over many years this caused the current claimed left knee disorder. The Board finds that the Veteran did not sustain a disease or injury related to left knee in service. As previously stated, the Veteran's service treatment records are unavailable for review. However, the Veteran has not stated that a left knee injury occurred during service, but rather has endorsed a right knee injury, for which he is already service-connected. The Board finds that the Veteran does not have a left knee disorder which is etiologically related to service, to include an in-service right knee injury. The Board also finds that the Veteran does not have a left knee disorder which is related to service-connected right knee arthritis with joint replacement. Private treatment records from April 1998 show that 8 to 10 years prior, the Veteran had a "left knee scope." On evaluation in April 1998, X-ray imaging revealed bilateral medial collapse of the joint space with patellofemoral arthrosis. The impression was bilateral degenerative joint disease. In October 1998, the Veteran underwent a total left knee arthroplasty at a private facility. VA X-ray imaging in February 2008 revealed bilateral complete knee prostheses. There was narrowing of the joint space and alignment was maintained. Osteopenia was also noted. On VA examination in March 2008, the examiner opined that the Veteran's left knee arthritis with replacement was less likely as not caused by or a result of a right knee disability. In coming to this conclusion, the examiner noted that X-ray imaging revealed signs of osteopenia "which will cause accelerated wear and tear on the bones." At the time of the left knee replacement, the Veteran was 64 years of age and the examiner stated that "the number one etiology for degenerative arthritis of the knee is age greater than 50." In a May 2011 statement the Veteran challenged the VA examiner's opinion, stating that left knee symptomatology began prior to age 50. However, even to the extent that this is true, the Veteran's age was only part of the examiner's rational, with evidence of osteopenia - low bone mineral density - being the other. X-ray examination in November 2011 revealed no significant change in the positioning and alignment of the known left knee arthroplasty components, as compared with X-ray imaging from February 2008. There was no evidence of osteolysis. Images were limited due to streaking artifact from total knee replacement, which limited evaluation of the osseous adjacent soft tissue structures. Small ossific densities were noted, and were likely due to previous trauma. On VA examination in June 2013, the examiner stated that the Veteran's claimed left knee disorder was less likely than not incurred in or caused by an in-service injury, event, or illness. Further, the examiner also stated that it was not as likely as not that that the Veteran's left knee disorder was aggravated beyond its natural progression by a service-connected disability. In so finding, the examiner opined that the Veteran's left knee prosthesis was placed in 1999, 44 years after separation, and that radiographic evidence had demonstrated that the femoral condylar and tibial prosthesis were in satisfactory alignment and without evidence of loosening. Statements in the record from the Veteran's wife, sister, brother-in-law, and friend all indicated that they witnessed the Veteran having knee problems immediately following service, though which knee, or whether both knees, is unclear. In addition, these lay statements indicate that the Veteran's left knee problem may have started several years after service, but were a result of his service-connected right knee. To the extent that those around the Veteran are competent to witness symptoms such as limping and complaints of pain, the Board finds these lay statements to be credible. However, lay persons are not competent to associate the claimed left knee disorder with a service-connected right knee disability as such a conclusion is a complex medical issue, and is not capable of lay observation. Nonetheless, the Board has taken into consideration all lay testimony in adjudicating the Veteran's appeal. With regard to the Veteran's contention that an in-service right knee injury caused changes in weight bearing, the Veteran is competent to state that he recalls changing how he distributed his weight as this is capable of lay observation. Layno. Furthermore, the Board finds such endorsement credible to the extent that the Veteran has been consistent in his own statements, and the lay statements of friends and family confirm witnessing an augmented gait since service. Nonetheless, the Veteran is not competent to link a change in weight bearing from a right knee injury during service to a left knee scope procedure between 1988 and 1990, or an eventual total replacement of the left knee 44 years after separation in 1998 or to his current left knee disorder. The diagnostic condition of the Veteran's left knee is not capable of lay observation, and accordingly the Veteran's endorsements of such a nexus are not competent and of not probative value. Jandreau at 1376-77. Of far greater probative value are the well-reasoned opinions of VA examiners, including the March 2008 opinion that the Veteran's left knee disorder was less likely as not caused by or a result of his right knee disability but rather was due to a combination of the aging process and the effects of osteopenia. The Board also reiterates the June 2013 VA examiner who opined that the left knee disorder was less likely than not incurred in or caused by an in-service injury, event, or illness, and that it is not as likely as not that that the Veteran's left knee disorder was aggravated beyond its natural progression by a service-connected disability. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER An initial rating in excess of 10 percent for a collapsed arch of the left foot is denied. Service connection for a back disorder is denied. Service connection for a left knee disorder is denied. REMAND Earlier Effective Date for the Grant of TDIU In May 2008 the Veteran stated that he was no longer working due to service connected disabilities. He also submitted to VA a letter from his former employer stating that the Veteran could no longer work due to his right knee. These statements constitute a claim for TDIU. TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a) (2013). Where the combined rating percentage requirements are not met, entitlement to the benefits may be nonetheless considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b) (2013). In a rating decision of August 2010, the RO granted TDIU effective October 15, 2009, as prior to this date the Veteran did not meet the schedular criteria for the award of TDIU. The Veteran argues that an earlier effective date should be established on an extraschedular basis under 38 C.F.R. § 4.16(b), prior to October 15, 2009. In order to ascertain whether TDIU may be awarded on an extraschedular basis prior to October 15, 2009, the RO should refer the case to the VA's Director of Compensation and Pension with regard to whether TDIU may be granted on an extraschedular basis. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. Refer the issue of TDIU to the VA Director Compensation and Pension Service for consideration of the assignment of an extra-schedular rating prior to October 15, 2009. 38 C.F.R. § 4.16(b). 2. After completing all indicated development, readjudicate the claim for TDIU in light of all the evidence of record. If any benefit sought on appeal remains denied, a Supplemental Statement of the Case should be furnished to the Veteran, and he should be afforded a reasonable opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs