Citation Nr: 1334995	
Decision Date: 11/01/13    Archive Date: 11/13/13

DOCKET NO.  07-34 214	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana


THE ISSUES

1.  Whether new and material evidence has been received to reopen service connection for a bilateral ankle disability, and, if so, whether service connection is warranted.

2.  Whether new and material evidence has been received to reopen service connection for migraine headaches, and, if so, whether service connection is warranted.

3.  Whether new and material evidence has been received to reopen service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), depression, and dysthymic disorder, to include as secondary to service-connected back, knee, and pes planus disabilities, and, if so, whether service connection is warranted.

4.  Service connection for a disorder characterized by bilateral hand/wrist pain.

5.  Service connection for right wrist arthritis.

6.  Entitlement to an increased rating (evaluation) in excess of 40 percent for mid-thoracic and lumbar strain.

7.  Entitlement to an increased rating (evaluation) in excess of 10 percent for right knee chondromalacia patella.

8.  Entitlement to an increased rating (evaluation) in excess of 10 percent for left knee chondromalacia patella.

9.  Entitlement to an increased rating (evaluation) in excess of 10 percent for bilateral pes planus.

10.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran (Appellant)


ATTORNEY FOR THE BOARD

J.B. Freeman, Counsel


INTRODUCTION

The Veteran (appellant) served on active duty from November 1982 to March 1992.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the RO in Indianapolis, Indiana, which denied increased disability ratings for mid-thoracic and lumbar strain, bilateral knee chondromalacia patella, and bilateral pes planus, and from a September 2009 rating decision declining to reopen service connection for a bilateral ankle disability, migraine headaches, PTSD and depression, denying service connection for bilateral hand/wrist pain, and denying a TDIU.  For reasons explained below, the Board has recharacterized the claim for service connection for bilateral hand/wrist pain to service connection for disorders characterized by bilateral hand and wrist pain and service connection for right wrist arthritis.  The Board has not only reviewed the physical claims file but also the file on the "Virtual VA" system and Veterans Benefits Management System to insure a total review of the evidence.  

The Veteran requested a personal hearing before a Member of the Board at the RO in his March 2010 substantive appeal.  In a June 2010 statement, the Veteran's representative indicated that the Veteran would accept a hearing before RO staff in lieu of a Board hearing.  The Veteran testified from the Chicago, Illinois, RO at a November 2010 videoconference hearing before a Decision Review Officer at the Indianapolis RO.  A transcript has been associated with the file.  The Board may proceed.  38 C.F.R. § 20.704(e) (2013).

The RO reopened and denied service connection for a bilateral ankle disability in a March 2010 statement of the case.  The RO denied service connection for migraine headaches on the merits in a November 2010 supplemental statement of the case (SSOC).  The RO reopened and denied service connection for an acquired psychiatric disability in an October 2011 SSOC.  Regardless of the RO's decision to reopen service connection for a bilateral ankle disability, migraine headaches and an acquired psychiatric disability, the Board is nevertheless required to address the issue of reopening to determine whether new and material evidence has been received.  See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial); Wakeford v. Brown, 8 Vet. App. 237 (1995).  

The claims of service connection for a bilateral ankle disability, right wrist arthritis, and an acquired psychiatric disability to include PTSD and depression and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC.


FINDINGS OF FACT

1.  An unappealed July 2003 rating decision, of which the Veteran was notified in August 2003, denied service connection for a bilateral ankle disability.

2.  Additional evidence received since the July 2003 rating decision is neither cumulative nor redundant, and raises the possibility of substantiating service connection for a bilateral ankle disability.

3.  An unappealed January 2004 rating decision, of which the Veteran was notified in February 2004, denied service connection for migraine headaches.

4.  Additional evidence received since the January 2004 rating decision is neither cumulative nor redundant, and raises the possibility of substantiating service connection for migraine headaches.

5.  An unappealed July 2003 rating decision, of which the Veteran was notified in August 2003, denied service connection for depression diagnosed as dysthymic disorder and anxiety and for PTSD on the basis of service in the Persian Gulf War.

6.  Additional evidence received since the July 2003 rating decision is neither cumulative nor redundant, and raises the possibility of substantiating service connection for depression.

7.  An unappealed February 2005 rating decision, of which the Veteran was notified in February 2005, denied service connection for PTSD on the basis of personal assault.

8.  The Veteran had active service in the Southwest Asia Theater of operations during the Persian Gulf War.

9.  The Veteran does not have a current diagnosable disability manifested by bilateral hand or wrist pain.

10.  The Veteran has an undiagnosed illness characterized by bilateral hand and wrist pain and sensory disturbance of the fingertips manifest to a compensable degree before December 2016.

11.  The Veteran's service-connected mid-thoracic and lumbar strain has not been manifested by symptoms approximating ankylosis even when considering painful motion, neurological complications, or incapacitating episodes at any time during the rating period on appeal.  

12.  For the entire appeal rating period, the Veteran's right knee chondromalacia patella has been manifested by extension to zero degrees, flexion to beyond 90 degrees or more, and painful motion on use.

13.  For the entire appeal period, the Veteran's left knee chondromalacia patella has been manifested by extension to zero degrees, flexion to 90 degrees or more, and painful motion on use.

14.  For the entire appeal period, the service-connected pes planus has been productive of pain on manipulation and use but not severe disability with objective evidence of marked deformity, accentuated pain on manipulation and use, indications of swelling on use, or characteristic callosities.

15.  The schedular ratings criteria are adequate to rate the service-connected mid-thoracic and lumbar spine disability, bilateral chondromalacia patella, and bilateral pes planus.


CONCLUSIONS OF LAW

1.  The July 2003 rating decision, denying service connection for a bilateral ankle disability, became final.  38 U.S.C.A. § 7105 (West 2002 & Supp. 2013); 38 C.F.R. § 20.1103 (2013).

2.  New and material evidence has been received to reopen service connection for a bilateral ankle disability.  38 U.S.C.A. § 5108 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156(a) (2013).

3.  The January 2004 rating decision, denying service connection for migraine headaches, became final.  38 U.S.C.A. § 7105 (West 2002 & Supp. 2013); 38 C.F.R. § 20.1103 (2013).

4.  New and material evidence has been received to reopen service connection for migraine headaches.  38 U.S.C.A. § 5108 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156(a) (2013).

5.  The July 2003 rating decision, denying service connection for depression diagnosed as dysthymic disorder and anxiety and for PTSD on the basis of service in the Persian Gulf War, became final.  38 U.S.C.A. § 7105 (West 2002 & Supp. 2013); 38 C.F.R. § 20.1103 (2013).

6.  New and material evidence has been received to reopen service connection for depression.  38 U.S.C.A. § 5108 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156(a) (2013).

7.  The February 2005 rating decision, denying service connection for PTSD on the basis of personal assault, became final.  38 U.S.C.A. § 7105 (West 2002 & Supp. 2013); 38 C.F.R. § 20.1103 (2013).

8.  A July 31, 2010 liberalizing law change occurred after the prior final denial of service connection for PTSD.  38 U.S.C.A. § 5108 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156(a) (2013).

9.  A disability characterized by bilateral hand/wrist pain and sensory disturbances of the fingertips is presumed incurred in active service in the Persian Gulf War.  38 U.S.C.A. §§ 1101, 1110, 1117, 1131, 1154(b), 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2013).

10.  The criteria for an evaluation greater than 40 percent for mid-thoracic and lumbar strain are not met for any period.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2013).

11.  The criteria for an evaluation greater than 10 percent for right knee chondromalacia patella are not met for any period.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5299-5014 (2013).

12.  The criteria for an evaluation greater than 10 percent for left knee chondromalacia patella are not met for any period.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5299-5014 (2013).

13.  The criteria for an evaluation greater than 10 percent for bilateral pes planus are not met for any period.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's petitions to reopen certain claims for service connection, an original claim for service connection for a left hand disability and increased ratings.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013).

New and material evidence specifically addressing the claims for service connection for a bilateral ankle disability, migraine headaches, PTSD, and depression has been received.  Therefore, the claims are reopened.  See 38 C.F.R. § 3.156(a).  The Board has also granted service connection for a disability characterized by bilateral hand and wrist pain and sensory disturbance of the fingertips.  Any error related to the duties to notify or assist as to these issues is moot.  See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007); Kent v. Nicholson, 20 Vet. App. 1 (2006).

When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  

To satisfy the first notice element for an increased-compensation claim, 38 U.S.C.A. § 5103(a) compliant notice must notify the claimant that, 1) to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability, 2) a disability rating will be determined by applying relevant Diagnostic Codes, based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment, and 
3) provide examples of the types of medical and lay evidence that relevant to establishing entitlement to increased compensation, and must also notify the claimant that to substantiate such a claim the claimant should provide or ask the Secretary to obtain medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment.  Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 107 (2010).  March 2006 letters (for the pes planus claim) and May 2006 (for the spinal strain and chondromalacia patella claims) fully satisfied the duty to notify provisions as to all elements prior to initial adjudication of the Veteran's increased rating claims in July 2006.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).  

The Board also concludes VA's duty to assist in obtaining records has been satisfied.  The Veteran's service treatment records and VA medical records are in the file.  Private medical records identified by the Veteran have been obtained.  

The Veteran's Social Security Administration (SSA) records have been associated with the file.  The records obtained do not contain the evidence supporting the SSA's decision.  The requests made to the SSA, which were associated in the claims file, asked for all medical records, evidence and decision documents.  The SSA appears to have provided the full file in their possession, which consisted of several copies of the same decision documents.  The Board finds that the SSA provided all extant records.  Further records requests would be futile.  The Veteran previously filed a claim for VA vocational rehabilitation records.  The RO attempted to associate the records of this claim in 2012.  The Vocational Rehabilitation Service notified the RO in November 2012 that the file was identified as not available during an inventory the previous August.  The Veteran was notified of the RO's inability to associate the records with the claims file and was asked to provide any relevant information in his possession in a November 2012 letter.  The Veteran did not provide the records.  Further development is not required.  See 38 C.F.R. § 3.159(e).  

For increased ratings claims, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of a veteran.  Green v. Derwinski, 1 Vet. App. 121 (1991).  In addition, where the evidence of record does not reflect the current state of a veteran's disability, a VA examination must be conducted.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a).  

The RO provided the Veteran appropriate VA examinations for the service-connected mid-thoracic and lumbar strain, bilateral chondromalacia patella, and bilateral pes planus in April 2009 and November 2012, with an additional spinal examination in December 2010.  The Veteran has not reported receiving any recent treatment specifically for this condition other than at VA and the private treatment mentioned above, records of which are in the file, and there are no records suggesting an increase in disability has occurred as compared to the most recent VA examination findings from November 2012.  The examination reports provide sufficient evidence to apply the ratings schedule to each disability and to determine that the schedular rating is adequate to rate each disability.  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted.  See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (mere passage of time does not require VA to provide a new medical examination); see also VAOPGCPREC 11-95.  The April 2009, December 2010, and November 2012 VA examination reports are thorough and supported by VA outpatient treatment records.  The examinations in this case are an adequate basis on which to adjudicate the claims.

Reopening of Service Connection

The Veteran has filed prior claims for service connection for a bilateral ankle disability, migraine headaches, and an acquired psychiatric disability.  These were denied at various times by RO rating decisions.  Under 38 U.S.C.A. § 5108, VA may reopen a previously and finally disallowed claim when "new and material" evidence is presented or secured with respect to that claim.  To prevent finality from attaching, a claimant must either initiate an appeal by filing a notice of disagreement or submit new and material evidence within one year of notice of the denial.  See 38 C.F.R. §§ 3.156(b), 20.200, 20.302 (2013).  

38 C.F.R. § 3.156(a) defines "new and material evidence." "[N]ew evidence" means evidence not previously submitted to agency decision makers, and "material evidence" means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  The new and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131.  Service connection connotes many factors but basically means that the evidence establishes that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisted such service, was aggravated therein.  38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Establishing service connection generally requires competent and credible evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Reopening of Service Connection for a Bilateral Ankle Disability

The Veteran's original claim for service connection for a bilateral ankle disability was denied in a July 2003 rating decision for lack of a current disability.  

The Veteran was notified of that rating decision and his procedural and appellate rights in an August 2003 letter.  This letter was sent to his address of record and was not returned as undeliverable.  The Veteran's representative submitted a July 2003 statement listing an incorrect address for the Veteran.  Several statements from the representative received in August, September, and October 2003 request that VA issue new notice using a corrected address.  The Board notes that the RO used the correct address in the August 2003 letter and that reissuance was not necessary.  

The Veteran did not express disagreement with the July 2003 rating decision as to the bilateral ankle disability in any statement received by the RO within one year of the August 2003 notice letter.  38 C.F.R. §§ 20.200, 20.302.  Evidence received in the year following did not address a bilateral ankle disability.  A May 2004 VA examination report addresses the Veteran's service-connected pes planus but did not offer specific evaluation of the ankles or comment regarding the existence of a bilateral ankle disability.  38 C.F.R. § 3.156(b).

The Board finds that the Veteran did not file a notice of disagreement or new and material evidence within one year of notice of the July 2003 rating decision.  The July 2003 rating decision became final as to the denial of service connection for a bilateral ankle disability.  38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103 (2013).

Since the prior final denial, additional evidence has been received in the form of VA treatment records and shows a current bilateral ankle disability.  A December 2004 MRI of the left ankle noted degenerative changes in the mid and hind foot, tenosynovitis, and an effusion of the navicular bone with degenerative changes surrounding the cyst.  A November 2005 consultation note states that the Veteran had undergone an August 2005 synovectomy of the left ankle and osteochondral drilling of the left talus.  The diagnoses included degenerative joint disease of both ankles.  

The November 2005 consultation note is new to the file since the prior final denial, addresses the basis for the prior final denial by showing a current bilateral ankle disability, and raises a reasonable possibility of substantiating the bilateral ankle disability claim.  In sum, the Board finds that new and material evidence has been received.  Reopening of service connection for a bilateral ankle disability is warranted.  See 38 C.F.R. § 3.156(a).

Reopening of Service Connection for Migraine Headaches

The Veteran's original claim for service connection for migraine headaches was denied in a January 2004 rating decision on the basis that the migraine headaches were not incurred in service or related to service.  The Veteran was notified of that rating decision and his procedural and appellate rights in a February 2004 letter.  

The Veteran submitted two statements within one year of the February 2004 notice, an October 2004 claim for increased ratings for other disabilities and a November 2004 stressor statement regarding the PTSD claim.  The Veteran did not file any statement expressing disagreement with the January 2004 rating decision's determination regarding service connection for migraine headaches within one year of the February 2004 notice letter.  38 C.F.R. §§ 20.200, 20.302.  

Additional records were received in the year following the February 2004 notice letter.  These were VA treatment records which mention a history of headaches and record one active headache in October 2004.  The basis of the prior denial was that the Veteran's headaches were not incurred in or related to service.  Notations of the existence of current headaches are not material to those bases for denial.  The Veteran's October and November 2004 statements do not discuss his headaches.  38 C.F.R. § 3.156(b).

The Board finds that the Veteran did not file a notice of disagreement new and material evidence was not received within one year of notice of the January 2004 rating decision.  The January 2004 rating decision became final as to the denial of service connection for migraine headaches.  38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103.

The evidence received since the prior final denial includes 2005 and 2006 VA neurological treatment notes.  An October 2005 note indicates that the Veteran had been previously diagnosed with migraine headaches, but that they were now diagnosed as headaches related to medication overuse (specifically Tylenol 3 and Motrin) for degenerative joint disease pain.  The note also indicated that he had recently undergone left ankle surgery and was on Tylenol 3 and Vicodin during recovery.  A February 2006 note repeats the conclusion that the headaches were common, vascular type headaches and possibly the result of medication rebound.  The VA treatment records show that he was on over 20 prescription medications at that time.

The Veteran did not present a secondary service connection theory of entitlement in his original headaches claim.  A denial of service connection on one theory of entitlement is a denial on all extant theories of entitlement even when not discussed.  See Brown v. Nicholson, 21 Vet. App. 290, 294-297 (2007) (en banc) (reopening is still required following finality of a rating decision where a RO failed to address an alternative theory of the claim).  Service connection may be established on a secondary basis for disability which is proximately due to, or the result of, a service-connected disease or injury.  38 C.F.R. § 3.310(a) (2013).  

The Veteran is service connected for back strain, bilateral knee chondromalacia patella, and bilateral pes planus, all of which result in pain.  He is on medication for that pain.  This medication results in recurrent headaches.  The evidence supporting this theory of entitlement did not exist at the time of the prior final denial.  The evidence makes out a prima facie case for secondary service connection for headaches.  

In sum, the Board finds that new and material evidence has been received.  The Board concludes that reopening of the claim for service connection for migraine headaches is warranted.  See 38 C.F.R. § 3.156(a).

Reopening Service Connection for an Acquired Psychiatric Disorder

In a July 2003 rating decision, the RO denied service connection for PTSD and depression diagnosed as a dysthymic disorder.  The RO exercised its discretion to bifurcate the PTSD claim and denied service connection for PTSD on the basis of service in the Persian Gulf War and reserved the issue of service connection for PTSD on the basis of personal assault.  See Tyrues v. Shinseki, 23 Vet. App. 166, 176 (2009) (noting that it is permissible for VA to bifurcate a claim for service connection based on direct service connection and presumptive service connection) (en banc) aff'd 631 F.3d 1380 (Fed. Cir. 2011), vacated on other grounds, 132 S. Ct. 75 (2012); Roebuck v. Nicholson, 20 Vet. App. 307, 315 (2006) (acknowledging that VA can bifurcate a claim and address different theories or arguments in separate decisions).  The denial of service connection for depression included a discussion of anxiety.  The Veteran was notified in an August 2003 letter, which included notice of his procedural and appellate rights.  As discussed above, it was sent to his home address and was not returned as undeliverable.  

The Veteran submitted a September 2003 statement requesting that the RO talk to his VA psychiatrist and a PTSD questionnaire on which he circled psychiatric symptoms from which he suffered.  Among these symptoms was depression.  

The Board finds that the Veteran did not file a timely Notice of Disagreement as to the July 2003 rating decision.  A Notice of Disagreement must be in terms which can be reasonably construed as disagreement with the rating determination and a desire for appellate review.  The Veteran's only statement which disagrees with the July 2003 rating decision within one year of issuance of the August 2003 notice letter is the September 2003 statement.  There is no language which may be reasonably construed as desiring appellate review.  On the contrary, the Veteran asks implicitly that the RO review the record again, which is not appellate review.  There are no other communications disagreeing with the July 2003 rating decision received within one year of the issuance of the August 2003 notice letter.  The Board finds that the Veteran did not file a Notice of Disagreement as to the July 2003 rating decision.  

The Board also finds that new and material evidence was not received within one year of notice of the July 2003 rating decision.  38 C.F.R. § 3.156(b).  The Veteran did file a September 2003 statement regarding his PTSD and psychiatric symptoms.  The Board notes that the July 2003 rating decision considered evidence including the Veteran's VA psychiatrist and listing the psychiatric symptoms from which he suffered.  The Veteran's statement is duplicative of content considered by the July 2003 rating decision.  Duplicative or cumulative evidence is not new within the meaning of new and material evidence.  See 38 C.F.R. § 3.156(a).  The Board finds that new and material evidence was not received within one year of the July 2003 rating decision.  See 38 C.F.R. § 3.156(b).  

The RO issued another rating decision regarding service connection for PTSD in January 2004.  This decision denied service connection for PTSD on the basis of personal assault finding that the personal assault did not occur based on a lack of corroborating evidence.  The Veteran was notified of the decision and his procedural and appellate rights in a February 2004 letter.  

In October 2004, the RO sent the Veteran a development letter regarding service connection for PTSD based on personal assault.  This letter asked the Veteran to complete a questionnaire regarding the personal assault.  The Veteran responded with a completed questionnaire in November 2004.  Additional evidence was received in October 2004 in the form of recent VA treatment records.  

The Board finds that completion of the personal assault questionnaire provided additional details regarding the in-service stressor that were not of record at the time of the January 2004 rating decision.  This addresses the grounds of the January 2004 rating decision.  The Board finds that the November 2004 questionnaire submission was new and material evidence received less than one year after the February 2004 notice of the adverse rating decision.  The November 2004 questionnaire prevented finality from attaching to the January 2004 rating decision as to service connection for PTSD.  See 38 C.F.R. § 3.156(b); see also Bond v. Shinseki, 659 F.3d 1362, 1368-69 (Fed. Cir. 2011).

The Veteran's claim for service connection for PTSD based on personal assault was denied again in a February 2005 rating decision because of a lack of corroborating evidence of the in-service stressor.  Notice of the decision and his procedural and appellate rights was sent to the Veteran in February 2005.  

The Veteran did not file a statement disagreeing with the denial of service connection for PTSD within the year following the February 2005 notice.  He responded with April and May 2005 requests for TDIU based on his back, knees, and feet disabilities.  There is no discussion of PTSD in these documents.  His representative submitted other statements concerning development of TDIU.  The Board finds that there was no Notice of Disagreement filed to the February 2005 rating decision.  

Additional evidence was received within one year of notice of the February 2005 but the evidence did not pertain to the grounds of the prior denial.  Records from the Methodist Hospital which mention a diagnosis of PTSD but describe treatment for conjunctivitis and hemorrhoids.  To the extent they are relevant, the Methodist Hospital records are duplicative of evidence previously considered by the RO.  A September 2005 VA psychiatric examination report was prepared in connection with the TDIU claim.  The Veteran was diagnosed with depression at that time.  The criteria for PTSD were not discussed.  Statements from former employers did not mention PTSD or any other psychiatric disorder.  The Board finds that this additional evidence is not material to the grounds of the prior denial of service connection PTSD.  Finality was not prevented from attaching to the February 2005 rating decision by receipt of new, material evidence.  See 38 C.F.R. § 3.156(b).  

In sum, the Board finds that a Notice of Disagreement was not timely filed as to the February 2005 rating decision and new and material evidence was not received within one year of notice of the February 2005 rating decision.  The February 2005 decision became final.  38 U.S.C.A. §7104.

During his November 2010 hearing before a Decision Review Officer, the Veteran argued that he had PTSD due to his service in the Persian Gulf War and that he should be entitled to de novo adjudication because of an intervening liberalizing law change.  He testified that he thought that he had PTSD as a result of his unit coming under fire during the Persian Gulf War.

Liberalizing law changes in law occurred related to "fear of hostile military or terrorist activity" in 2010.  See 75 Fed. Reg. 39,843 (July 13, 2010); see also 38 C.F.R. § 3.304(f)(3) (2013).  When there is an intervening change in the law or regulation which creates a new basis for entitlement to benefits, a claim under the liberalizing regulation is a claim separate and distinct from the claim previously and finally denied and may be reviewed on a de novo basis.  See Spencer v. Brown, 4 Vet. App. 283, 288-89 (1993), aff'd, 17 F.3d 368 (Fed. Cir. 1994), cert. denied, 513 U.S. 810 (1994).  The Board finds that reopening is not required as to the "fear of hostile military or terrorist activity" regulation.  As a result, service connection for PTSD may be considered on a de novo basis.  See Spencer, 4 Vet. App. at 288-89.

As to service connection for acquired psychiatric disorders other than PTSD, service connection for depression, dysthymic disorder, and anxiety were denied in the July 2003 rating decision discussed above.  The rationale was that there was no evidence linking such a disorder to active service.  

The Veteran contended during the instant appeal that his depression is secondary to his service-connected disabilities of the back, knees, and feet.  The Veteran did not allege his depression was secondary to his service-connected disabilities during his prior claim for service connection for an acquired psychiatric disability.  The Veteran was service-connected for disabilities of the back, knees, and feet in July 2003 and had diagnoses of depression, a dysthymic disorder, and anxiety at that time.  

A denial of service connection on one theory of entitlement is a denial on all extant theories of entitlement even when not discussed.  See Brown, 21 Vet. App. at 294-297.  Service connection may be established on a secondary basis for disability which is proximately due to, or the result of, a service connected disease or injury.  38 C.F.R. § 3.310(a).  The Veteran is service connected for back strain, bilateral knee chondromalacia patella, and bilateral pes planus, all of which result in pain.  A lay witness may competently indicate the potential cause of depression.  See Trafter v. Shinseki, 26 Vet. App. 267 (2013).  The Veteran's lay statements supporting this theory of entitlement were not of record at the time of the prior final denial.  The evidence makes out a prima facie case for secondary service connection for depression.  In sum, the Board finds that new and material evidence has been received.  The Board concludes that reopening of the claim for service connection for depression is warranted.  See 38 C.F.R. § 3.156(a).

Service Connection Law and Regulations

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131.  Service connection connotes many factors but basically means that the evidence establishes that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisted such service, was aggravated therein.  38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Establishing service connection generally requires competent and credible evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Shedden, 381 F.3d at 1167.

Service connection may also be granted on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either during active 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 21, 2016, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.  38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1).  In claims based on qualifying chronic disability, 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 v. Principi, 19 Vet. App. 1, 8-9 (2004).  Notably, laypersons are competent to report objective signs of illness.

A "qualifying chronic disability" for purposes of 38 U.S.C.A. § 1117 is a chronic disability resulting from (1) an undiagnosed illness, (2) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (3), any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C.A. § 1117(d) warrants a presumption of service connection.  38 U.S.C.A. § 1117(a)(2); 38 C.F.R. § 3.317(a), (c).  As an initial matter, the diseases for which the Secretary has established a presumption under (3) are all infectious in nature.  The Veteran does not allege and the record does not suggest that he has any of the listed diseases. 

"Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification.  To fulfill the requirement of chronicity, the illness must have persisted for a period of six months.  38 C.F.R. § 3.317(a)(2), (3).  Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders.  38 C.F.R. § 3.317(b).

The Board notes that, effective July 13, 2010, VA has amended its adjudication regulations governing presumptions for certain Persian Gulf War veterans.  Such revisions amend § 3.317(a)(2)(i)(B) to clarify that chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome are examples of medically unexplained chronic multisymptom illnesses and are not an exclusive list of such illnesses.  Additionally, the amendment removes § 3.317(a)(2)(i)(B)(4) which reserves to the Secretary the authority to determine whether additional illnesses are 'medically unexplained chronic multisymptom illnesses' as defined in paragraph (a)(2)(ii) so that VA adjudicators will have the authority to determine on a case-by-case basis whether additional diseases meet the criteria of paragraph (a)(2)(ii).  These amendments are applicable to claims pending before VA on October 7, 2010, as well as claims filed with or remanded to VA after that date.  See 75 Fed. Reg. 61,997 (Oct. 7, 2010).  

Compensation under 38 U.S.C.A. § 1117 shall not be paid if: (1) there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; (2) if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) if there is affirmative evidence that the illness is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs.  38 C.F.R. § 3.317(c). 




Service Connection for a Disability Characterized by Bilateral Hand/Wrist Pain

The Board concludes that presumptive service connection is warranted for an undiagnosed illness characterized by hand and wrist pain and sensory disturbance of the fingertips but not direct service connection because of a lack of a currently diagnosed disability.  

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  See Degmetich v. Brown, 104 F. 3d 1328 (1997).  The requirement of a current disability is satisfied when the claimant had a disability at the time a claim for VA disability compensation was filed, or during the pendency of that claim, and that a claimant may be granted service connection even though the disability resolves prior to the VA's adjudication of the claim.  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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 Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology).  

The Veteran filed an October 2007 statement included with his substantive appeal on increased rating claims, stating that his hand and wrist hurt.  A July 2008 statement indicated that he had "arthritis" all over his body and that his hand and wrist would go numb.  In a March 2010 substantive appeal, the Veteran insisted that all his injuries happened to him while in military service.

A September 2008 VA orthopedic surgery outpatient note indicates that the Veteran was evaluated for a cyst on the right wrist and bilateral carpal tunnel syndrome.  He gave a history of numbness and tingling in all fingertips of both hands.  The physical examination found no thenar atrophy bilaterally, negative Tinel's, Phalen's, and median compression tests bilaterally, sensation intact to light touch in the median, radial, and ulnar nerve distributions, and 2+ radial pulses.  X-ray studies were interpreted to be normal.  The doctor indicated that the exam and symptoms were not consistent with carpal tunnel syndrome.  It was unclear why the Veteran had numbness in his fingertips.  A related August 2008 note records a history from the Veteran of degenerative joint disease in a large number of joints, including the wrists.  The diagnosis was not confirmed on examination.  

The Veteran's left hand was evaluated again at a November 2012 VA examination.  Following a full work up, the Veteran's hands and wrists were found normal.  No diagnosis was offered.

The Board finds first that the Veteran does not have arthritis of the left hand or wrist.  A lay observer would be competent to report pain or numbness in a hand or wrist.  See Jandreau, 492 F.3d at 1377.  Such pain or numbness could be the result of any number of physical disorders.  Whether that pain or numbness is indicative of arthritis is beyond the ability of a lay observer to diagnose because it requires radiographic imaging or other specialty testing to diagnose.  See id.  The Veteran also did not report that he had been told that he had arthritis in his left hand or wrist; he merely asserted that he had arthritis in his hand and wrist.  This is not competent lay evidence of a medical diagnosis.  See id.  The medical evidence of record is competent, addresses the Veteran's complaints, and concludes uniformly that the Veteran does not have arthritis in the left hand or wrist.  

The Board finds further that there is no diagnosed disorder of the left hand or wrist.  The Veteran has not reported a competent lay diagnosis, or reported a contemporaneous medical diagnosis.  On consideration of his lay complaints, no diagnosis has been offered by medical professionals.  As a result, service connection is not warranted on a direct basis.  See Shedden, at 1167.  

The Board notes that the Veteran's complaints are not confined to the right wrist and 2008 treatment note may be read to exclude the possibility that right wrist arthritis was responsible for the sensory disturbance in his fingertips.  The Board finds, therefore, that the right wrist arthritis is distinct from his general bilateral hand, wrist, and sensory disturbance complaints.  To the extent that the Veteran has arthritis of the right wrist, that is addressed separately in the Remand section below.  

The Board has also considered presumptive service connection under the Persian Gulf War presumptions.  Under 38 U.S.C.A. § 1117(a)(2) and 38 C.F.R. 
§ 3.317(a)(2)(i), "Qualifying chronic disability" includes: (a) an undiagnosed illness; (b) a "medically unexplained chronic multisymptom illness" (such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders) that is defined by a cluster of signs or symptoms; or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection.  

The Veteran is competent as a lay observer to report joint pain and sensory disturbances in his hands and wrists.  See Gutierrez.  These complaints have been evaluated and cannot be attributed to a medical diagnosis.  The 2008 evaluation identified the potentially involved nerves as the radial, median, and ulnar nerves.  A 10 percent rating is available for mild incomplete paralysis of each of those nerves, whether paralysis, neuritis, neuralgia.  See 38 C.F.R. § 4.124a, Diagnostic Codes 8514-16, 8614-16, 8714-16 (2013).  Neuritis is characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain.  38 C.F.R. § 4.123 (2013).  The Veteran complains of continuous pain in his hands and wrists and sensory disturbances in his fingertips.  Thus, he has two of the four symptoms of neuritis.  The Board finds that the Veteran's bilateral hand and wrist pain are objective indications of a chronic disability as undiagnosed illnesses comparable to at least mild neuritis of the radial, median, or ulnar nerves.  Service connection is warranted under 38 C.F.R. § 3.317(b).  38 U.S.C.A. § 1117.  As such, the Board finds that the evidence is at least in equipoise of the Veteran's hand and wrist pain claim, except for arthritis of the right wrist.  Consequently, the benefit-of-the-doubt rule applies, and presumptive service connection for an undiagnosed illness characterized by bilateral hand and wrist pain and sensory disturbance of the fingertips is warranted.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.




Disability Ratings Legal Criteria

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations.  Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran.  38 C.F.R. § 4.3.  However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided.  38 C.F.R. § 4.14. 

When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination.  With any form of arthritis, painful motion is an important factor of disability.  Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint.  Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint.  38 C.F.R. § 4.59.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged."  Hart v. Mansfield, 21 Vet. App. 505 (2007).  

Rating for Mid-Thoracic and Lumbar Strain

The Veteran is service connected for mid-thoracic and lumbosacral strain, rated as 40 percent disabling under Diagnostic Code (DC) 5237.  

Disabilities of the spine, excepting degenerative disc disease, are rated under the General Rating Formula for Diseases and Injuries of the Spine.  See 38 C.F.R. § 4.71a, DC 5235-5243.  Under the Formula, a 50 percent evaluation requires unfavorable ankylosis of the entire thoracolumbar spine.  Id.  A 100 percent evaluation is warranted where unfavorable ankylosis of the entire spine is demonstrated.  Id.  These evaluations are for application with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.  Id.

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees.  38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, Note (2).

The Veteran has been evaluated repeatedly at VA examinations.  June 2006, April 2009, December 2010, and November 2012 VA examination reports indicate that the Veteran had preserved forward flexion, extension, lateral bending and lateral rotation.  The Veteran's VA treatment records do not indicate that he has spinal ankylosis.  The Veteran does not allege that he has ankylosis of the spine.  The Board finds that the Veteran does not have ankylosis of the spine.  A rating in excess of 40 percent is not warranted for orthopedic symptoms under the General Rating Formula for Diseases and Injuries of the Spine.  See 38 C.F.R. § 4.71a.  

Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are separately evaluated under an appropriate Diagnostic Code.  Id., at Note (1).  

The June 2006 VA spinal examination report states that the Veteran had an altered gait, which was associated with his obesity and was not due to atrophy of gluteus muscles or a rigid back.  He had negative straight leg raises and negative Lasegue's signs.  Deep tendon reflexes were 2+ and equal bilaterally in the patellas and ankles.  He had full sensation to light touch distally in the bilateral lower extremities.  He had 5/5 strength with dorsiflexion and plantar flexion bilaterally.  There was no clonus.  

At an April 2009 VA examination, the Veteran denied radiculopathy to the lower extremities.  There were no bladder or bowel symptoms.  Straight leg raising and deep tendon reflexes were equal bilaterally.  There were no pathological reflexes.  There was no clonus.  There were no neurological findings.  

A December 2010 VA spinal examination report states that the Veteran underwent a MRI that showed minimal disc bulge without any indentation of the thecal sac.  The MRI also showed no nerve root impingement and no spinal stenosis.  The Veteran described his pain as in the thoracolumbar area more to the midline and to the right.  There was no associated numbness, tingling, or weakness reported in the upper or lower extremities.  

The November 2012 VA spinal examination report states that the Veteran had 5/5 muscle strength in all tested muscle groups, 2+ reflexes in all tested reflexes, and normal sensation in his lower extremities except his left lower leg and foot, where he had diminished sensation.  The straight leg raises were negative.  He did not have radicular pain or other signs or symptoms due to radiculopathy.  The Veteran did not have any other neurological abnormalities or findings related to his service-connected back disability.  

The Veteran has been treated for erectile dysfunction.  A September 2009 VA endocrinology consultation note attributed clearly that this condition is due to hypogonadism.  As such, there is no reason to find that it is a neurological complication of his service-connected thoracic and lumbar strain.  

The Veteran's statements in support of his claim and his testimony at the RO do not describe neurological complications.  He describes recurrent severe pain and difficulty moving, which are a part of the orthopedic rating above.  The preponderance of the evidence is against a finding that the Veteran has objective neurological complications as a result of his service-connected mid-thoracic and lumbar strain.  Separate compensable ratings for neurological disorders are not warranted.  

The Board has considered the additional functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint, and during flare-ups as reported by the Veteran.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca. 

Here, the Board notes the Veteran's reported impairment of function and has considered additional limitations of motion due to pain or other orthopedic factors as limiting motion where the pain begins or where the evidence shows such factors limit functional use.  Painful motion is considered limited motion at the point that the pain actually sets in.  VAOPGCPREC 9-98.  A June 2006 VA examination report shows that the Veteran had forward flexion to 20 degrees due to extreme pain.  An April 2009 VA examination report states that the Veteran had forward flexion to 90 degrees without painful motion even on repetitive testing.  A December 2010 VA examination report states that the Veteran had forward flexion to 50 degrees with pain beginning at 59 degrees.  A November 2012 VA examination report states that the point where painful motion begins is at 60 degrees forward flexion.  The June 2006 VA examination report is the most severe showing of limitation of forward flexion due to painful motion.  When the painful motion is not as great, the Veteran's forward flexion greatly exceeds the 30 degrees of forward flexion needed for his present 40 percent rating.  The Board finds that the present rating compensates the Veteran's painful motion during a flare-up as shown on the June 2006 VA examination.  The Board finds that the Veteran's mid-thoracic and lumbar strain symptoms are more closely approximated by limitation of forward flexion to 40 degrees than to unfavorable ankylosis, as is required for a 50 percent disability rating.  A rating in excess of 40 percent is not warranted for additional functional impairment based on painful motion.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca.

The Veteran testified in November 2010 that he has had incapacitating episodes of back pain.  Degenerative disc disease, also called intervertebral disc syndrome, may also be rated based on alternative criteria.  The alternative Formula for Rating Intervertebral Disc Syndrome under DC 5243 assigns rating based on incapacitating episodes.  38 C.F.R. § 4.71a, DC 5243 (2013).  For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  Id. at Note (1).  

The Veteran's testimony in November 2010 was that he had been prescribed bed rest by doctors at VA.  The Veteran is competent to report that he has been prescribed bed rest.  

The record weighs against the Veteran's testimony.  The Veteran's regular VA treatment records show no prescription of bed rest due to the service-connected back disability.  An August 2008 note indicates that the Veteran had been on bed rest due to benign prostatic hypertrophy.  The March 2006 VA examination report did not address prescribed bed rest due to the service-connected back disability.  The April 2009 VA examination report states that the Veteran did not have any incapacitating episodes.  The November 2012 VA examination report states that the Veteran does have a diagnosis of intervertebral disc syndrome.  The report also states that the Veteran did not have any incapacitating episodes in the previous twelve months.

The Board finds that the weight of the evidence is against a finding that the Veteran has been prescribed bed rest by a physician.  The Veteran has pointed to his VA treatment records as proof of prescribed bed rest for his back disability, yet they contradict him.  The prescribed bed rest was for a different, unrelated disorder.  

The Board has considered the possibility of staged ratings.  See Hart, 21 Vet. App. at 511.  The Board, however, concludes that the criteria for a rating in excess of 40 percent have at no time been met.  Accordingly, staged ratings are inapplicable.  See id.  

As such, the Board finds that the preponderance of the evidence is against the Veteran's increased rating claim for mid-thoracic and lumbar strain on a schedular basis.  Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied on a schedular basis.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.

Ratings for Bilateral Knee Chondromalacia Patella

The Veteran is currently in receipt of separate 10 percent ratings for chondromalacia patella of each knee.  The RO has assigned the ratings under Diagnostic Code 5299-5014, a hyphenated listing indicating an unlisted disability rated by analogy to osteomalacia.  See 38 C.F.R. §§ 4.27, 4.71a (2013).  

Osteomalacia is to be rated as degenerative arthritis under DC 5003.  38 C.F.R. § 4.71a.  Diagnostic Code 5003 provides that degenerative arthritis established by x-ray findings is to be evaluated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved.  When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, an evaluation of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  In the absence of limitation of motion, a 10 percent evaluation is assignable for x-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups.  A 20 percent evaluation is assignable for x-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes.  38 C.F.R. § 4.71a.

Under Diagnostic Code 5260, limitation of knee flexion is given a 30 percent rating where flexion is limited to 15 degrees; a 20 percent rating is assigned where flexion is limited to 30 degrees; a 10 percent rating is assigned where flexion is limited to 45 degrees; a zero percent rating is assigned where flexion is limited to 60 degrees.  Id.  

Under Diagnostic Code 5261, limitation of knee extension is assigned a 50 percent rating where extension is limited to 45 degrees; a 40 percent rating is assigned where extension is limited to 30 degrees; a 30 percent rating is assigned where extension is limited to 20 degrees; a 20 percent rating is assigned where extension is limited to 15 degrees; a 10 percent rating is assigned where extension is limited to 10 degrees; a zero percent rating is assigned where extension is limited to 5 degrees.  Id.  

Full range of motion of the knee is from 0 to 140 degrees.  38 C.F.R. § 4.71, Plate II (2013). 

At a June 2006 VA examination, the Veteran had an active range of motion of the right knee from zero to 110 degrees and passively from zero to 120 degrees.  He had active and passive ranges of motion of zero to 120 degrees in the left knee.  

At an April 2009 VA examination, the Veteran had ranges of motion from zero to 125 degrees in both knees without painful limitation.  

An August 2009 VA general medicine attending note indicates that the Veteran had full range of motion in both knees.  Although this note is not specific in degrees and does not report results from goniometer testing, the Board finds that it supports the VA examination report findings.

The Veteran testified in November 2010 that he quit working in part because of his knees.  He reported that he worked as a truck driver and stepping down on a pedal caused his knees to hurt.  He also reported receiving braces through VA that went from the tops of his thighs down to his feet.  

At a November 2012 VA examination, the Veteran had a range of motion of the right knee from zero to 90 degrees without objective evidence of painful motion.  He had a range of motion of zero to 100 degrees in the left knee with painful motion beginning at 90 degrees of flexion.  

The Board finds that the Veteran's ranges of right and left knee motion greatly exceed the compensable minimums under either DC 5260 or DC 5261.  He had full extension without painful motion on all tests.  He had flexion beyond 60 degrees even considering painful motion on all tests.  The Board concludes that the criteria for ratings under DC 5260 and DC 5261 are not met.  Therefore, under DC 5003, compensable (10 percent) ratings are only allowable on the basis of painful motion.  The Veteran already receives separate 10 percent ratings for each knee.  Under DC 5003, 20 percent ratings are only warranted for incapacitating exacerbations of symptoms.  The Veteran has not alleged and the evidence does not otherwise demonstrate that he had incapacitating exacerbations of his chondromalacia patellae.  The Board concludes that 20 percent ratings under the DC 5003 criteria are not warranted.  

The Board has considered the rule of DeLuca and painful motion under 38 C.F.R. §§ 4.40, 4.45, 4.59.  The Veteran is competent to report the presence of pain in his knees when he engages in various activities, such as truck driving.  The Veteran is already in receipt of 10 percent ratings based on his complaints of painful motion.  In light of the conclusion that compensable ratings are not warranted under the relevant limitation of motion Diagnostic Codes and the basis for his current ratings, the Board concludes that the rule of DeLuca and painful motion has already been applied.  Further increased ratings are not warranted.

The Board has also considered the applicability of other diagnostic codes.  Under DC 5256, ratings are available for ankylosis of the knee.  Ratings may be assigned for recurrent subluxation or lateral instability under Diagnostic Code 5257.  See VAOPGCPREC 23-97 and 9-98.  Under Diagnostic Code 5258, a 20 percent rating may be assigned for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint.  Under DC 5259, a 10 percent rating may be assigned for symptomatic removed semilunar cartilage.  Ratings are available for impairment of the tibia and fibula under DC 5262.  Under DC 5263, a 10 percent may be assigned for acquired, traumatic genu recurvatum with objectively demonstrated weakness and insecurity in weight-bearing.  The Veteran does not contend and the evidence does not otherwise demonstrate that the Veteran has ankylosis, recurrent subluxation or lateral instability, semilunar cartilage impairment, tibia or fibula impairment, or genu recurvatum.  The Board finds that further inquiry into these DCs is moot.

The Board has considered the possibility of staged ratings.  See Hart.  The Board, however, concludes that the criteria for ratings in excess of 10 percent for either knee have at no time been met.  Accordingly, staged ratings are inapplicable.  See id.  

As such, the Board finds that the preponderance of the evidence is against the increased rating claims for chondromalacia patella of the right and left knees on a schedular basis.  Consequently, the benefit-of-the-doubt rule does not apply, and the claims must be denied on a schedular basis.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.

Rating for Bilateral Pes Planus

The Veteran is in receipt of a 10 percent for moderate bilateral pes planus.  Under DC 5276, acquired flatfoot (pes planus), a 10 percent rating is assigned for moderate bilateral or unilateral symptoms with weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, and pain on manipulation and use of the feet.  A 30 percent evaluation is assigned for bilateral pes planus if severe, with objective evidence of marked deformity (pronation, abduction, etc), accentuated pain on manipulation and use, indications of swelling on use, with characteristic callosities.  A 50 percent evaluation is assigned for pronounced bilateral pes planus, with marked pronation, extreme tenderness of the plantar surface of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, and not improved by orthopedic shoes or appliances.  38 C.F.R. § 4.71a.

On VA examination in March 2006, the Veteran reported an increase in the pain in his feet.  He reported that the pain was becoming more constant in nature.  He described the pain as in the bottom of his heel and radiating into the toes.  He stated that, with walking, standing, and even sometimes lying down, he had increasing pain.  He had had a previous bunionectomy on his right foot and previous bilateral ankle scopes.  He had seen podiatry and been given inserts for his shoes.  He had been on gabapentin, morphine, and ibuprofen for discomfort and had minimal relief of his symptoms.  On physical examination, he had a normal insertion of the Achilles' tendon with weight-bearing.  He was able to toe raise and heel raise and was able to walk without an antalgic gait.  On his right foot, the Veteran had a well healed 1 cm scar on the right first metatarsalphalangeal joint.  He had some mild tenderness to palpation along the plantar aspect of his foot.  He had very mild tenderness to palpation along the medial arch.  On the left foot, he had some tenderness to palpation more along the plantar aspect of his heel and along the plantar fascia region.  He had some mild tenderness to palpation on the medial aspect of the arch.  He had a well-healed scar from prior ankle surgery.  He had a normal appearing insertion of the Achilles' tendon on both feet.  Ranges of motion were normal without pain in both feet.  The ranges of motion were the same during passive, active, and repetitive motion.  There was no limitation secondary to weakness, fatigability, incoordination, or flare-ups.  There were no incapacitating episodes or radiation of pain, and no neurological findings or effect on the Veteran's usual occupation or daily activities.  He did not use corrective devices.  There was no abnormal weight bearing or functional limitations.  There was no effect on his occupation.  

The Veteran reported that his feet "would not let him stand a lot of times," in his October 2007 substantive appeal.  

On VA examination in April 2009, the Veteran's feet were flattened in both the longitudinal and transverse arches.  There was moderate bulging present.  There were no callus or wart formations.  There was evidence of previous excision of a bunion on the right great toe.  The Veteran had no other medical treatment or corrective devices.  There were no abnormal weight-bearing or functional limitations.  There was no major functional impairment on standing and walking.  There was no pain on manipulation of the feet.  There was no effect on the Veteran's usual occupation, but the Veteran was noted to be unemployed.  

The April 2009 VA examination report states both that there was deviation of the Achilles' tendon bilaterally and that there was normal Achilles' tendon alignment.  Given the contradictory content of this portion of the examination, the Board discounts this particular finding.  

During a November 2010 hearing before a Decision Review Officer, the Veteran testified that he thought that his feet and ankles should be rated as a single disability.  The Veteran, however, has been diagnosed with distinct disabilities of the feet and ankles.  His request is not based on any change in medical diagnosis but appears to be his preference.  The Board has remanded the claim for service connection for a bilateral ankle disability below.  

On VA examination in November 2012, the Veteran had pain accentuated on use and manipulation of the feet.  There was no indication of swelling on use of the feet.  He did not have characteristic callosities.  His symptoms were not relieved by use of arch support.  He did not have extreme tenderness of the plantar surfaces of his feet.  The Veteran did not have decreased longitudinal arch height on weight-bearing, objective evidence of marked deformity of the feet, marked pronation, weight-bearing lines falling 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.  The Veteran reported using braces on his feet regularly.  The examiner indicated that the flatfoot condition had no impact on the Veteran's ability to work.  

A substantial number of VA treatment records have been associated with the record.  The Veteran does not seek regular treatment for his flatfeet.  An April 2009 podiatry consultation note indicates that the Veteran had been given lace up supports for his ankles.  These appear to be the braces mentioned during the November 2010 testimony and the November 2012 VA examination.  

The Board finds that the Veteran's bilateral pes planus has not been productive of severe manifestations including marked deformity, indications of swelling on use, or characteristic callosities.  There was a single finding of Achilles' tendon deviation; however, the Board discounts the April 2009 finding because the examiner contradicted the finding later on in the report.  The remaining medical evidence does not demonstrate the presence of marked deformity of either foot, aside from the diagnosis of pes planus itself.  There have been no findings and the Veteran has not reported swelling on use or the presence of calluses on his feet.  

There was a single finding of accentuated pain on manipulation and use in the November 2012 VA examination report, which is a component of severe pes planus under DC 5276.  The Veteran's pes planus has been productive mostly of pain on use and manipulation.  He has not had the other indicia of even moderate pes planus, weight-bearing line over or medial to the great toe and inward bowing of the tendo achillis, which would warrant a 10 percent rating.  He has not had the objective evidence of deformity or altered gait needed for a 10, 30, or 50 percent rating under DC 5276.  

The Board finds also that, while the Veteran's feet were painful during this period, accentuated pain on manipulation and use is not more nearly approximated than pain on manipulation and use, nor is extreme tenderness of the plantar surfaces.  Although the Veteran complains of pain while standing and walking, he also complains of pain while lying down which does not correspond to pain on use.  The Veteran has significant pain complaints and seeks regular treatment for his back and knees, as discussed above.  He does not seek regular treatment for his feet.  He reported using braces for his feet; however, the podiatry records indicate that the braces are specifically for his non-service-connected ankles.  The Veteran has attempted to conflate the feet and ankle disabilities into a single disability, but competent medical evidence demonstrates them to be distinct.  The Board finds that the podiatry note is more probative as to the reason for brace use than the Veteran's statements.  Moreover, the 30 percent criteria require that the pain be "accentuated."  Constant pain and severe pain, as described by the Veteran, is certainly a component of disability; however, pain itself is not probative of entitlement to a higher rating.  The lack of altered gait indicates that he is not favoring a foot or attempting to shift his weight to cope with "accentuated" pain.  

In sum, the Board finds that the preponderance of the evidence shows that the Veteran's bilateral pes planus has been productive of pain on manipulation and use, but not severe pes planus with objective evidence of marked deformity, accentuated pain on manipulation and use, indication of swelling on use, or characteristic callosities for the entire rating period.  The criteria for a rating in excess of 10 percent have not been more nearly approximated.  See 38 C.F.R. § 4.71a, DC 5276.

The Board has considered the rule of DeLuca and painful motion under 38 C.F.R. §§ 4.40, 4.45, 4.59.  DC 5276 rates pes planus in part on the presence of functional impairments such as swelling and pain on manipulation and use and by whether the pes planus is unilateral or bilateral.  The Veteran has been assigned the appropriate rating based on bilateral pes planus which is not severe or pronounced, as discussed.  As the ratings criteria anticipate and compensate the symptoms of painful motion present in this case, the Board concludes that a further award under the rule of DeLuca and 38 C.F.R. §§ 4.40, 4.45, 4.59 is not warranted.  

The Board notes that the Veteran underwent a bunionectomy of the great toe of the right foot in 2000.  At present, the bunionectomy is not a component of the service-connected bilateral pes planus.  When it is not possible to separate the effects of the service-connected condition from a non-service-connected condition, 38 C.F.R. § 3.102 requires that reasonable doubt on any issue be resolved in a veteran's favor, and that such signs and symptoms be attributed to the service-connected condition.  See Mittleider v. West, 11 Vet. App. 181 (1998).  The Veteran's statements in support of this appeal have not referenced independent or distinct symptomatology referable to the bunionectomy which have not otherwise been addressed as part of the bilateral pes planus.  The Veteran's statements and testimony generally describe pain in his feet, not particular pain of the right forefoot.  The Board concludes that there are no symptoms that need separate rating.  Finally, the Board finds that the Veteran has not otherwise raised a claim for service connection for the right foot bunionectomy that needs to be addressed by the RO in the first instance.  The reference to the bunionectomy appears to be an incidental reference to an anatomically close disorder to the one under consideration.  The Veteran does not contend and the evidence does not indicate that the bunionectomy may be related, either causally or by aggravation, to service or service-connected disabilities.  Consideration of a rating for the right foot bunionectomy is, therefore, beyond the scope of the instant appeal.  

The Board has considered the possibility of staged ratings.  See Hart.  The Board, however, concludes that the criteria for a rating in excess of 10 percent have at no time been met for the Veteran's bilateral flatfeet.  Accordingly, staged ratings are inapplicable.  See id.  

As such, the Board finds that the preponderance of the evidence is against the Veteran's increased rating claim for bilateral pes planus on a schedular basis.  Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied on a schedular basis.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.

Extraschedular Consideration

The Board has also considered whether a referral for extraschedular rating is warranted.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  Initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule; therefore, the assigned schedular evaluation is adequate, and no referral is required.  See VAOPGCPREC 6-96; see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  

The schedular criteria for rating disabilities of the mid-thoracic and lumbar spine, right and left knee, and bilateral pes planus anticipate and reasonably describe the Veteran's service-connected disabilities.  The schedular rating criteria specifically provides ratings for such noncompensable limitation of motion due to painful arthritis (Diagnostic Codes 5003, 38 C.F.R. § 4.59), and contemplate ratings based on limitation of motion (Diagnostic Codes 5235-5243, 5256, 5260, 5261), including motion limited to orthopedic factors such as pain, weakness, and stiffness (38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca).  The Veteran has been awarded evaluations for painful motion for his spine, knees and feet disabilities.  In this case, comparing the Veteran's disability level and symptomatology of the disabilities of the spine, knees, and feet to the rating schedule, the degree of disability throughout the entire period under consideration is contemplated by the rating schedule and the assigned rating is, therefore, adequate.  The Board need not determine whether the claimant's disability picture exhibits other related factors such as "governing norms" such as "marked interference with employment" and "frequent periods of hospitalization."  See Thun, 22 Vet. App. at 115.  Referral for extraschedular consideration is not warranted.  See VAOPGCPREC 6-96. 

As such, the Board finds that the preponderance of the evidence is against the Veteran's increased rating claims on schedular bases and against referral of the disability ratings for extraschedular consideration.  Consequently, the benefit-of-the-doubt rule does not apply, and the claims must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.


ORDER

Reopening of service connection for a bilateral ankle disability is granted.

Reopening of service connection for migraine headaches is granted.

Reopening of service connection for an acquired psychiatric disability, to include PTSD and depression, is granted.

Presumptive service connection for an undiagnosed illness characterized by bilateral hand and wrist pain and sensory disturbance of the fingertips is granted.

An increased rating in excess of 40 percent for mid-thoracic and lumbar strain is denied.

An increased rating in excess of 10 percent for right knee chondromalacia patella is denied.

An increased rating in excess of 10 percent for left knee chondromalacia patella is denied.

An increased rating in excess of 10 percent for bilateral pes planus is denied.


REMAND

The Board must remand the claims of service connection for a bilateral ankle disability, right wrist arthritis, and an acquired psychiatric disability to include PTSD and depression and entitlement to a TDIU for additional development.

Service Connection for a Bilateral Ankle Disability

The Veteran contends that he has a current bilateral ankle disability that is the result of in-service ankle sprains.  During testimony in November 2010, the Veteran's representative argued both that the Veteran's ankle disabilities should be considered part of his service-connected bilateral pes planus and that consideration of secondary service connection should be afforded.  

Service connection may be granted for a disability which is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a) (2013).  In addition, a claimant is entitled to service connection on a secondary basis when it is shown that a service-connected disability has chronically aggravated a nonservice-connected disability.  Allen v. Brown, 7 Vet. App. 439 (1995).

Arthritis of both ankles has been diagnosed.  The Veteran was provided an April 2009 VA examination and a June 2009 addendum opinion.  The opinion only considered whether the Veteran's bilateral ankle arthritis was directly related to service and not whether the arthritis was secondarily related to the service-connected pes planus.  There was no evaluation as to whether the Veteran's bilateral ankle arthritis could have been caused or aggravated by his service-connected bilateral pes planus.  The April 2009 VA examination report and the June 2009 opinion do not reflect that a history pertaining to potential secondary relationship between the service-connected bilateral pes planus and the bilateral ankle arthritis was taken.  

VA is obligated to consider all issues raised by a veteran or reasonably raised by the evidence of record.  Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009).  The Board remands for a VA examination and medical opinion to assist in determining whether the service-connected bilateral pes planus either caused or aggravated the bilateral ankle arthritis.

Service Connection for Headaches

The Board must remand the claim for service connection for headaches for a VA examination and medical opinion.  As discussed above, an October 2005 note indicates that the Veteran had been previously diagnosed with migraine headaches, but that they were now diagnosed as headaches related to medication overuse (specifically Tylenol 3 and Motrin) for degenerative joint disease pain.  The note also indicated that he had recently undergone left ankle surgery and was on Tylenol 3 and Vicodin during recovery.  A February 2006 note repeats the conclusion that the headaches were common, vascular type headaches and possibly the result of medication rebound.  The VA treatment records show that he was on over 20 prescription medications at that time.  A January 2011 VA examination for PTSD indicates that the Veteran was also diagnosed with an opioid abuse disorder.  

To the extent that medication overuse has been attributed to any particular disorder, the October 2005 note states that it was due to left ankle surgery.  As the Veteran is not yet service connected for a left ankle disorder, the headache claim is intertwined with the left ankle claim which is being remanded.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991), overruled on other grounds by Tyrues v. Shinseki, 23 Vet. App. 166 (2010), aff'd. 631 F.3d 1380 (Fed. Cir. 2011), vacated on other grounds, 132 S. Ct. 75 (U.S. 2011).  

The record is also not clear whether the Veteran's opioid abuse disorder constitutes willful misconduct.  Compensation shall not be paid if the disability was the result of a veteran's own willful misconduct or abuse of alcohol or drugs.  38 U.S.C.A. §§ 105, 1110 (West 2002); 38 C.F.R. §§ 3.1(n), 3.301(c) (2013).  Service connection for compensation purposes is permitted for an alcohol or drug abuse disability acquired as secondary to a service-connected disability.  See Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001).  Compensation may be awarded only "where there is clear medical evidence establishing that alcohol or drug abuse is caused by a veteran's primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing."  Allen, 237 F. 3d at 1381.  The isolated and infrequent use of drugs by itself will not be considered willful misconduct; however, the progressive and frequent use of drugs or alcohol to the point of addiction will be considered willful misconduct.  38 C.F.R. § 3.301(c).  Where drugs are used to enjoy or experience their effects and the effects result proximately and immediately in disability or death, such disability or death will be considered the result of the person's willful misconduct.  Id.  The Board also notes that headaches are among the objective manifestations of an undiagnosed illness but that the presumption may be rebutted by evidence of disability due to willful misconduct.  See 38 C.F.R. § 3.317, supra.  

The Board notes that the October 2005 VA note indicates overuse, not abuse, compared to the January 2011 VA examination report.  The January 2011 VA examination report conducted a comprehensive review of the Veteran's medical history, but offered no rationale supporting the opioid abuse with prescription medication or whether the abuse was the result of willful misconduct (use of drugs for enjoyment or to experience the effects) rather than addiction resulting from chronic prescription medication use for long-term pain management.  The Board also notes that the Veteran is on a large number of medications, some of which are for service-connected disabilities and some are not.  

The Board concludes that an addendum opinion is necessary to resolve whether the Veteran's headaches are caused by medication abuse due to willful misconduct.  If the question cannot be answered without another examination of the Veteran, an examination should be provided.  

Service Connection for Right Wrist Arthritis

The Board must remand the claim for service connection for right wrist arthritis for an adequate VA medical opinion.  The Veteran testified that he had stress on his right wrist from working with large guns, from getting into fights, and from physical training during service.  The Veteran is competent to report the circumstances of his service.  38 U.S.C.A. § 1154(a).  

The Board finds that a November 2012 VA examination report is inadequate for failing to explain adequately why there was no current disability of the right wrist, when arthritis had been diagnosed.  The November 2012 VA examination report indicates that the Veteran was diagnosed with right wrist arthritis by x-ray in 2008.  The examiner also included a statement that the Veteran did not seek care during service.  The examination report indicates that the Veteran did not have right wrist arthritis at the time of the November 2012 examination based on x-ray studies.  There were, however, no x-ray studies conducted at the time of the November 2012 VA examination.  The basis for the lack of diagnosis is not supported by the contents of the claims file.  

The November 2012 VA examination report is also inadequate because not all theories of entitlement were addressed.  Although the Veteran denied treatment for his wrists during service, an August 1984 treatment note states that the Veteran sought treatment for right hand pain.  He denied any trauma.  The examination was normal.  He was prescribed Motrin.  The Board is not convinced that adequate review of the claims file occurred because of this oversight.

Finally, the November 2012 VA examination report contains an inadequate rationale for finding that the Veteran's disability was not at least as likely as not related to service.  The rationale was on the basis that there was no evidence of treatment during service or documentation of continuous treatment from service to the present.  The lack of contemporaneous medical evidence does not necessarily render the Veteran's statements of an in-service injury not competent or not credible.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).  The opinion's focus on the lack of medical documentation ignores the Veteran's lay statements regarding the conditions of his service and whether those conditions may have resulted in the present disability.  

Service Connection for an Acquired Psychiatric Disorder

The RO developed and considered the Veteran's claim for service connection for an acquired psychiatric disorder on a direct and secondary basis.  The Board finds, however, that the development as to the secondary basis is inadequate.  

The Veteran's argument during his November 2010 hearing was that secondary service connection should be considered for all his claimed disabilities.  The evaluations for PTSD, both in a January 2011 VA examination and in regular VA treatment records, do not address whether the PTSD or depression was aggravated by the Veteran's service-connected disabilities.  The Veteran's allegation throughout has been that his PTSD was caused by service and there is no reasonably raised contention that it was caused by his service-connected disabilities.  As to PTSD, only the aggravation basis should be addressed.  VA mental health clinic notes from 2012 include rule out mood disorder due to general medical conditions among his diagnoses.  The entry of "rule out" is not a settled diagnosis, but a possible diagnosis.  Moreover, the Veteran has several non-service-connected disabilities mentioned in those records including sleep apnea, hypertension, and cardiomyopathy heart disease without congestive heart failure.  There are also the disorders of bilateral ankles, headaches, and right wrist arthritis which the Veteran contends should be service connected.  The Board remands for an adequate VA examination to provide a medical opinion to assist in determining whether the Veteran's service-connected disabilities aggravated his PTSD and to assist in determining whether the service-connected disabilities caused or aggravated his acquired psychiatric disabilities other than PTSD.

Entitlement to a TDIU

The outcome of the claim for a TDIU could be affected by the results of development ordered on remand.  Thus, the TDIU claim is inextricably intertwined, and the proposed development will encompass those issues.  See Harris, 1 Vet. App. at 183.  

Accordingly, the claims of service connection for a bilateral ankle disability, right wrist arthritis, and an acquired psychiatric disability to include PTSD and depression and entitlement to a TDIU are REMANDED for the following action:

1.  The RO/AMC should refer the case to the VA examiner who conducted the April 2009 VA examination (or a suitable substitute) for a supplemental medical opinion regarding secondary service connection for the bilateral ankle disability.  Another examination is not required; however, if the VA examiner indicates that he or she cannot respond to the Board's questions without examination of the Veteran, such should be afforded the Veteran.

The VA examiner should offer the following opinions: 

Is it at least as likely as not (50 percent probability or greater) that bilateral ankle arthritis was caused by the service-connected bilateral pes planus?

Is it at least as likely as not (50 percent probability or greater) that bilateral ankle arthritis was aggravated (permanently worsened in severity beyond the normal progress) by the service-connected bilateral pes planus?

The examiner should provide a rationale for his or her opinion with reference to the evidence of record and should provide a discussion of the facts and medical principles involved.

2.  The RO/AMC should refer the case to the VA examiner who conducted the November 2012 VA examination (or a suitable substitute) for a supplemental medical opinion regarding service connection for the right wrist arthritis.  Another examination is not required; however, if the VA examiner indicates that he or she cannot respond to the Board's questions without examination of the Veteran, such should be afforded the Veteran.

The VA examiner should offer the following opinion: 

Is it at least as likely as not (50 percent probability or greater) that right wrist arthritis was caused by stress on his right wrist from working with large guns, from getting into fights, and from physical training?

The examiner should provide a rationale for his or her opinion with reference to the evidence of record and should provide a discussion of the facts and medical principles involved.

3.  The RO/AMC should refer the case to the VA examiner who conducted the January 2011 VA examination (or a suitable substitute) for a supplemental medical opinion regarding secondary service connection for an acquired psychiatric disability to include PTSD or depression.  Another examination is not required; however, if the VA examiner indicates that he or she cannot respond to the Board's questions without examination of the Veteran, such should be afforded the Veteran.

The VA examiner should offer the following opinion: 

Is it more likely than not that the Veteran's overuse of prescription medication was the result of willful misconduct (use of drugs for enjoyment or to experience the effects)?

In the alternative, is it as likely as not that the Veteran's prescription medication addiction results from chronic prescription medication use for long-term pain management?

The examiner should provide a rationale for his or her opinion with reference to the evidence of record and should provide a discussion of the facts and medical principles involved.

4.  Then, the RO should readjudicate the claims on the merits.  If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim.  38 C.F.R. § 3.655 (2013).  


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. 2013).



______________________________________________
J. PARKER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs