Citation Nr: 1335025 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 09-44 661 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for plantar fasciitis of the left foot. 2. Entitlement to an initial compensable rating for plantar fasciitis of the right foot. 3. Entitlement to an initial compensable rating for chronic plantar warts of the left foot. 4. Entitlement to service connection for residuals of a left ankle disorder. 5. Entitlement to service connection for a right ankle disorder. 6. Entitlement to service connection for a low back disorder. 7. Entitlement to service connection for scar, status post-laceration of the right index finger. 8. Entitlement to service connection for chronic hypersomnolence. 9. Entitlement to service connection for chronic anal cyst as residual of urinary tract infection (UTI). 10. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Armed Forces Service Corporation ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1984 to August 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which in pertinent part, granted service connection for bilateral plantar fasciitis and chronic plantar warts of the left foot and assigned a noncompensable rating. The December 2008 rating decision denied the remaining issues on appeal. In a subsequent October 2009 rating decision, the RO assigned a 10 percent rating for the Veteran's plantar fasciitis (left foot only), effective August 1, 2008, the date of the Veteran's claim for VA compensation. Although the RO granted a higher 10 percent disability rating for plantar fasciitis of the left foot, the claim remains in controversy because the Veteran is not in receipt of the maximum benefit allowable. See A.B. v. Brown, 6 Vet. App. 35 (1993). The issue of service connection for chronic anal cyst as residual of UTI is addressed in the REMAND portion of the decision below and is REMANDED the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. For the entire initial rating period on appeal, plantar fasciitis has been manifested by pain, tenderness, and increased pain with use in the left foot, but not the right foot. 2. For the entire initial rating period on appeal, the Veteran's service-connected left foot plantar warts have not been shown to comprise at least five percent of the entire body, or at least five percent of exposed areas affected, or to require the use of systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period. 3. The Veteran does not have a current ankle, low back, right finger, sleep disorder, or hearing loss disability. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for plantar fasciitis of the left foot have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, Diagnostic Code 5284 (2013). 2. The criteria for an initial compensable rating for plantar fasciitis of the right foot have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, Diagnostic Code 5284 (2013). 3. The criteria for an initial compensable rating for plantar warts of the left foot have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, 4.118, Diagnostic Codes 7806, 7820 (2013). 4. The criteria for service connection for residuals of a left ankle sprain have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 1133, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). 5. The criteria for service connection for residuals of a right ankle sprain have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 1133, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). 6. The criteria for service connection for residuals of a low back disorder have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 1133, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). 7. The criteria for service connection for scar, status post-laceration of the right index finger, have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 1133, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). 8. The criteria for service connection for chronic hypersomnolence have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 1133, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). 9. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 1133, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). VA has met its duty to notify and assist the Veteran in this case. In an August 2008 letter, VA informed the Veteran of the evidence necessary to substantiate his claim for service connection, evidence VA would reasonably seek to obtain, and information and evidence for which the Veteran was responsible. The August 2008 letter also provided the Veteran with notice of the type of evidence necessary to establish a disability rating and effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The claims regarding initial ratings for plantar fasciitis and chronic plantar warts arise from the Veteran's disagreement with the initial evaluation assigned after the grant of service connection. The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). The Board is satisfied that VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes service treatment records, private treatment records, and written assertions from the Veteran and his representative. Further, the Veteran was afforded a VA examination in February 2009 to assess the current severity of his bilateral foot disabilities. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As set forth in greater detail below, the Board finds that the VA February 2009 examination obtained in this case is adequate as it contains a description of the history of the disability at issue; documents and considers the Veteran's complaints and symptoms; fully addresses the relevant rating criteria; and contains a discussion of the effects of the Veteran's disabilities on his occupational and daily activities. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board acknowledges that the Veteran has not been afforded VA medical examinations with respect to the service connection claims on appeal, to include the claimed ankle disorders, low back disorder, right index finger scar, and chronic hypersomnolence; however, the Board finds that VA examinations are not necessary to decide these claims. In McLendon v. Nicholson, 20 Vet App. 79 (2006), the Court held that in disability compensation claims, the Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. Id. at 81. The Board has reviewed all the evidence of record and finds that the weight of the evidence is against a finding of a diagnosis for the Veteran's claimed ankle, low back, right index finger scar, sleep, and hearing loss disorders. Because there is no competent evidence of a current disability for the Veteran's claimed disorders and there is no indication that the disorder or persistent or recurrent symptoms may be associated with the Veteran's service or with another service-connected disability, there is no reasonable possibility that a VA examination or opinion could aid in substantiating the current claims for service connection. See 38 U.S.C.A. § 5103A(a)(2) (West 2002) (VA "is not required to provide assistance to a claimant...if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim"). As such, the duty to assist by providing a VA examination or opinion is not invoked in this case because there is no reasonable possibility that such assistance would aid in substantiating the claim. See 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). For these reasons, the Board concludes that VA has fulfilled its duties to notify and assist the Veteran and, accordingly, the Board will proceed to a decision. Significantly, neither the Veteran nor his representative have identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained; hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Disability Rating Laws and Analysis Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2013). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). The United States Court of Appeals for Veterans Claims (Court or CAVC) has also held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. The Board has considered whether staged ratings are for consideration; however, as the Board will discuss in more detail below, the evidence of record does not establish distinct time periods where the Veteran's service-connected disabilities resulted in symptoms that would warrant different ratings. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (2013). Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45 (2013). With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59 (2013). Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14 (2013). However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Rating for Plantar Fasciitis Although initially service-connected for bilateral plantar fasciitis in the December 2008 rating decision, the Veteran was granted a 10 percent rating for plantar fasciitis of the left foot under Diagnostic Code 5276 (acquired flat foot, pes planus) in the October 2009 rating decision. As such, the right foot plantar fasciitis remains at a noncompensable rating. Also, while the RO assigned a 10 percent disability rating for left foot plantar fasciitis under Diagnostic Code 5276, the Board finds that because the evidence of record shows that the Veteran does not have diagnosed pes planus, and because plantar fasciitis is manifested by symptoms of pain in tenderness in the left foot, ratings under Diagnostic Code 5284 are more appropriate in this case. Diagnostic Code 5284 provides ratings for residuals of other foot injuries. Moderate residuals of foot injuries are rated 10 percent disabling; moderately severe residuals of foot injuries are rated 20 percent disabling; and severe residuals of foot injuries are rated 30 percent disabling. A Note to Diagnostic Code 5284 provides that foot injuries with actual loss of use of the foot are to be rated 40 percent disabling. 38 C.F.R. § 4.71a. After a review of all the evidence, lay and medical, the Board finds that, for the entire appeal period, the Veteran's left foot plantar fasciitis has been manifested by pain and tenderness, with increased pain with use. The Veteran's right foot has not been manifested by pain or any abnormal findings. During the February 2009 VA examination, the Veteran reported pain in his left foot which occurred constantly. The pain was localized. The Veteran described the pain as burning and sharp, and rated it as 6/10 in intensity. The pain was noted as being elicited by physical activity and was relieved by rest. At the time of pain, the Veteran stated that he could function without medication. The Veteran also described additional symptoms of difficulty walking for more than 15 or 20 minutes. At rest, he did not have any pain, weakness, stiffness, swelling, or fatigue. While standing or walking, the Veteran reported no weakness, stiffness, swelling, or fatigue. The Veteran did report having received cortisone injections intermittently, which provided relief for five to six weeks with no side effects. Upon physical examination, the February 2009 examiner found that posture and gait were within normal limits. Examination of the right foot revealed no tenderness, painful motion, weakness, edema, heat, redness, instability, atrophy, or disturbed circulation. The VA examiner found no plantar fasciitis diagnosis of the right foot upon examination. Examination of the left foot revealed painful motion and moderate tenderness, but did not reveal edema, disturbed circulation, weakness, atrophy of the musculature, heat, redness, or instability. There was active motion of the metatarsophalangeal joint of the left great toe. Weight bearing examination of the Achilles tendon showed normal alignment bilaterally. Non-weight bearing examination of the Achilles tendon showed normal alignment bilaterally. There was no evidence of pes planus or pes cavus. No hammer toes were found. Morton's metatarsalgia was not present. There was no hallux valgus or hallux rigidus present. The Veteran required shoe inserts, but did not require orthopedic shoes, corrective shoes, arch supports, foot supports, or build-up of the shoes. Based on a review of all of the evidence of record, lay and medical, the Board finds that the criteria for a 20 percent rating under Diagnostic Code 5284 have not been met or more nearly approximated for any portion of the rating period for the Veteran's left foot plantar fasciitis disability. The Board further finds that the Veteran's right foot plantar fasciitis does not warrant a compensable rating as the February 2009 VA examiner did not find any objective evidence of pain and tenderness or a current diagnosis of plantar fasciitis of the right foot. As to the Veteran's left foot disability rating, even with consideration of pain on use, the Veteran's left foot plantar fasciitis does not more nearly approximate moderately severe residuals of a foot injury at any time during the rating period. The February 2009 VA examination show that the Veteran did not have edema, disturbed circulation, weakness, heat, redness, or instability. His gait was normal on examination and he was able to work, with the use of shoe inserts. For these reasons, the Board finds that the Veteran's disability picture more nearly approximates the Diagnostic Code 5284 criteria described for a 10 percent evaluation for mild left foot plantar fasciitis, and does not more nearly approximate the criteria for a higher 20 percent rating. See 38 C.F.R. §§ 4.3, 4.7, 4.71a. The Board recognizes that when evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to pain. See DeLuca. Painful joints due to a healed injury are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Here, the 10 percent rating for left foot plantar fasciitis contemplates the Veteran's complaints of pain and increase pain on use. The Board has considered whether separate or higher ratings are warranted under Diagnostic Code 5276 (acquired flat foot or pes planus). While the Veteran was initially evaluated under Diagnostic Code 5276, the February 2009 VA examination stated that the Veteran did not have pes planus. Further, the VA examiner did not find a marked deformity in either foot, pain on manipulation, swelling, and characteristic callosities as described for a higher rating under Diagnostic Code 5276. For these reasons, the Board finds that the Veteran's left foot plantar fasciitis does not more nearly approximate a higher 20 percent evaluation under Diagnostic Code 5276. The Board finds no basis to alternately consider the criteria of Diagnostic Code 5277 (bilateral weak foot characterized by musculature atrophy, disturbed circulation and weakness), Diagnostic Code 5278 (acquired claw foot or pes cavus), Diagnostic Code 5279 (anterior metatarsalgia or Morton's disease), Diagnostic Code 5280 (hallux valgus), Diagnostic Code 5281 (unilateral hallux rigidus), Diagnostic Code 5282 (hammer toe), or Diagnostic Code 5283 (malunion or nonunion of the tarsal or metatarsal bones). The February 2009 VA examination showed that the Veteran did not have evidence of bilateral weak foot, claw foot, pes cavus, Morton's metatarsalgia, hallux valgus, hallux rigidus, or hammertoe, and x-rays did not reflect malunion or nonunion of the tarsal or metatarsal bones. For these reasons, the Board finds that an initial rating in excess of 10 percent for plantar fasciitis of the left foot is not warranted. The Board further finds that a compensable rating for plantar fasciitis of the right foot is not warranted. Rating for Chronic Left Foot Plantar Warts The Veteran's left foot plantar warts are rated under Diagnostic Codes 7820 and 7806. Under Diagnostic Code 7820, infections of the skin not listed elsewhere in the Rating Schedule are evaluated under Diagnostic Code 7800, Diagnostic Codes 7801 through 7805 (scars), or Diagnostic Code 7806 (dermatitis or eczema), depending on the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7820. Pursuant to Diagnostic Code 7806, a 10 percent evaluation is warranted where at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas are affected, or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than six weeks during the past 12-month period. A 30 percent evaluation requires 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806. At the February 2009 VA examination, the Veteran had warty lesion on left foot at the 5th metatarsal. The Veteran's left foot had no exudation, ulcer formation, itching, or shedding. The Veteran stated that he had not undergone any treatment over the past 12 months. Upon physical examination, the February 2009 examiner noted that the warts on the left 5th metatarsal revealed crusting and induration of less than six square inches. There was no ulceration, exfoliation, disfigurement, tissue loss, inflexibility, hypopigmentation, hyperpigmentation, abnormal texture and limitation of motion. Skin lesions were zero percent in the exposed area. The skin lesion coverage relative to the whole body was one percent. The skin lesions were not associated with systemic disease and the skin lesions did not manifest in connection with a nervous condition. The Board finds that, based on the evidence of record, the Veteran's left foot plantar warts do not warrant a compensable disability rating. In this regard, there is no evidence that the Veteran's left foot plantar warts cover five percent or more of his entire body. In addition, the evidence does not demonstrate, and the Veteran has not alleged, that he has used systemic therapy such as corticosteroids or other immunosuppressive drugs at any time to treat his service-connected left foot warts. As such, a compensable disability rating under Diagnostic Code 7806 is not warranted. 38 C.F.R. § 4.118, Diagnostic Code 7806. The Board has considered rating the Veteran's left foot plantar warts under other Diagnostic Codes, in order to provide him with the most beneficial rating; however, there are no other Diagnostic Code pertaining to disabilities of the skin that would provide a compensable disability rating, taking into account the Veteran's disability picture as it pertains to his left foot warts. 38 C.F.R. § 4.118, Diagnostic Codes 7800-7833 (2008, 2013). As such, a compensable disability rating is not warranted for the Veteran's service-connected left foot plantar warts. Extraschedular Consideration The Board has considered whether referral for an extraschedular evaluation is warranted for the Veteran's plantar fasciitis and plantar warts disabilities. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2013). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). 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, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's foot disabilities is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. In this Veteran's case, the Veteran's plantar fasciitis has been manifested by pain, tenderness, and increased pain with use in the left foot, but not the right foot. The Veteran's service-connected left foot plantar warts comprise less than five percent of the entire body, and less than five percent of exposed areas affected, and do not require the use of systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period. The schedular rating criteria provides for ratings based on these symptoms and manifestations. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155 (2012). " Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1 (2013). The functional limitations imposed by the Veteran's disability are specifically contemplated by the criteria discussed above, including the effect of the Veteran's foot pain on his occupation and daily life. In the absence of exceptional factors, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The claimed conditions relating the Veteran's ankles, low back, right finger scar, and hypersomnolence are not chronic diseases listed under 38 C.F.R. § 3.309(a) and therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) do not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, sensorineural hearing loss is considered a chronic disease and 38 C.F.R. § 3.303(b) is applicable to that issue. Generally, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b) ; 38 C.F.R. § 3.102. Service Connection for Bilateral Ankle Disorder, Right Index Finger Scar, and Chronic Hypersomnolence In his August 2008 claim for VA compensation, the Veteran noted that he was seeking service connection for "residual severe ankle sprain." The Veteran did not specify which ankle (left, right, or both) and did not provide the date of when his disability began. The Veteran did note that he received treatment during service in May 1997. The Veteran is also claiming entitlement to service connection for a scar to the index finger. According to the August 2008 claim for VA compensation, the Veteran noted that he was treated for the laceration in December 1997. As for chronic hypersomnolence (a sleep disorder), the Veteran did not specify the date of onset or any treatment received for the claimed disorder. The Board finds that the weight of the evidence of record demonstrates that the Veteran does not have a current disability relating to his ankles, right index finger, or claimed hypersomnolence. A review of service treatment records does not demonstrate any complaints, diagnosis, or treatment for an ankle, index finger, or sleep disorder. The Veteran's May 2004 service separation examination report also revealed a normal clinical evaluation of the lower and upper extremities. The evaluation of the Veteran's feet was noted as abnormal; however, this was a result of his plantar fasciitis and plantar warts, and not due to an ankle disorder. The May 2004 service separation examination report also did not note any sleep disorder, to include chronic hypersomnolence. In the May 2004 report of medical history, completed by the Veteran at service separation, the Veteran checked "no" to the question of whether he had frequent trouble sleeping. Further, post-service private treatment records dated October 2005 to June 2009 also do not reveal any complaints, diagnosis, or treatment for an ankle disorder or a scar of the right index finger. Private treatment records dated November 2007 and October 2008 show that the Veteran requested medication to help with sleep while traveling. Specifically, in the November 2007 private treatment note, the Veteran reported that he had been traveling often and was unable to sleep on the airplane. The Veteran denied problems sleeping when at home. The private physician assessed situational insomnia and prescribed Ambien. The Board finds that this evidence does not demonstrate a current diagnosis of a sleep disorder, to include chronic hypersomnolence. The Veteran's assessment and prescribed medication was in response to situational insomnia (unable to sleep on airplane) and was not based on a current sleep disability. In the August 2008 duty to assist letter, the RO notified the Veteran of the requirements to establish service connection; however, the Veteran did not submit any evidence in support of his claim for service connection for the claimed ankle sprains, right index finger scar, or chronic hypersomnolence. Upon review of all the evidence of record, the Board finds that service connection for an ankle disorder, right index finger scar, and chronic hypersomnolence is not warranted because in the absence of proof of a present disability there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). As the preponderance of the evidence is against the claim, reasonable doubt does not arise, and the claim is denied. Service Connection for Low Back Disorder In his August 2008 claim for VA compensation benefits, the Veteran reported injuring his low back during service in October 1986. A review of service treatment records reveals that the Veteran did seek treatment for low back pain in October 1986 after falling against a vehicle. The findings were noted as probable deep spasm of the lower lumbar area, which was treated with ice and heat. Subsequent service treatment records do not reflect any continued complaints, diagnosis, or treatment for a low back disorder. A periodic physical examination conducted in April 1995 revealed a normal clinical evaluation of the Veteran's spine. Further, the May 2004 service separation examination also revealed a normal evaluation of the spine. The service treatment records demonstrate that the in-service low back pain and spasm injury resolved with treatment in service. The remaining evidence of record, to include post-service private treatment records dated October 2005 to June 2009, do not reveal any complaints, diagnosis, or treatment for a low back disorder. As noted above, with any claim for service connection, it is necessary for a current disability to be present. See Brammer at 225. The Veteran did not submit any evidence in support of his claim for service connection for a low back disorder in response to the RO's August 2008 duty to assist letter. For these reasons, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for a low back disorder as the evidence fails to show a current diagnosis of the claimed disorder. As such, the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Service Connection for Bilateral Hearing Loss For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Also, the threshold for normal hearing is between 0 and 20 decibels, and higher threshold shows some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The provisions of 38 C.F.R. § 3.385 do not require that hearing loss be shown as defined in that regulation at the time of separation from service, if there is sufficient evidence to demonstrate a relationship between the Veteran's service and his current disability. Hensley, 5 Vet. App. 155. A review of the Veteran's service treatment records reveals that at the time of his April 1984 service entrance examination, testing revealed pure tone thresholds, in decibels, of 10, 0, 0, 0, and 0 for the right ear; and 5, 0, 0, 0, and 0, for the left ear, at 500, 1000, 2000, 3000, and 4000 Hertz. During a January 1985 in-service periodic audiological examination, testing revealed pure tone thresholds, in decibels, of 5, 10, 5, 5, and 0 for the right ear; and 0, 5, 5, 10, and 5, for the left ear, at 500, 1000, 2000, 3000, and 4000 Hertz. During an April 1995 in-service periodic audiological examination, testing revealed pure tone thresholds, in decibels, of 10, 5, 0, 0, and 0 for the right ear; and 10, 10, 5, 0, and 0, for the left ear, at 500, 1000, 2000, 3000, and 4000 Hertz. At the time of the Veteran's May 2004 service separation examination, testing revealed pure tone thresholds, in decibels, of 15, 5, 0, 0, and 10 for the right ear; and 0, 5, 0, 0, and 0, for the left ear, at 500, 1000, 2000, 3000, and 4000 Hertz. On his May 2004 service separation report of medical history, the Veteran checked the "no" box when asked if he had or had ever had hearing loss. Service treatment records do not show hearing loss in service as all puretone thresholds were less than 20 decibels. See Hensley at 157. While the Veteran indicated on the August 2008 claim that he was treated for high frequency bilateral hearing loss from May 4, 1997 at the Ft. Polk audiology clinic, the service treatment records do not show treatment and, as noted above, the audiological findings in service do not show hearing loss. For these reasons, the Board finds that there was no hearing loss diagnosed in service and, therefore, hearing loss was not chronic in service. Further, post-service treatment records are negative for complaints, diagnosis, or treatment for bilateral hearing loss. While the Veteran may be competent to report diminished hearing, he has not been shown to have the requisite training or credentials needed to ascertain whether the auditory thresholds set forth in 38 C.F.R. § 3.385 have been met as this is a medically complex question. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Also, the Veteran has not stated that his claimed hearing loss disorder has been continuous since service separation. For these reasons, the Board finds that the weight of the competent and probative evidence, including in-service audiology examinations, demonstrates that the Veteran does not currently have hearing loss as defined in 38 C.F.R. § 3.385. As a current disability has not been demonstrated, the presumptions referable to chronic diseases could not serve to establish service connection. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.303(b), 3.307, 3.309. There is no current competent evidence of hearing loss within the meaning of 38 C.F.R. § 3.385. The preponderance of the evidence is against the claim, reasonable doubt does not arise, and the claim is denied. ORDER An initial rating in excess of 10 percent for plantar fasciitis of the left foot is denied. An initial compensable rating for plantar fasciitis of the right foot is denied. An initial compensable rating for chronic plantar warts of the left foot is denied. Service connection for residuals of a left ankle disorder is denied. Service connection for a right ankle disorder is denied. Service connection for a low back disorder is denied. Service connection for scar, status post-laceration of the right index finger is denied. Service connection for chronic hypersomnolence is denied. Service connection for bilateral hearing loss is denied. REMAND As to the claim for service connection for chronic anal cyst as residual of UTI, the Board finds that a remand is warranted in order to obtain a VA medical opinion in order to afford the Veteran every possible consideration. Private treatment records reflect that the Veteran has been treated for hemorrhoids, anal cysts, and anal abscess on several occasions. The May 2004 service separation report of medical history reveals that the Veteran had a history of hematuria (blood in the urine) for 45 days as a result of a severe UTI. The Veteran contends that his current anal cyst disorder is related to the in-service UTI. See August 2008 Veteran's claim for VA compensation benefits. As such, a VA medical opinion is needed to assist in determining whether a relationship exists between the Veteran's current disorder and service. McLendon, 20 Vet App. 79. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should refer the case for a VA examination within the appropriate specialty to determine if the Veteran's anal cyst/hemorrhoid disorder is etiologically related to service. The claims folder, along with a copy of this Remand, must be made available to the examiner for review. The examiner must review the entire claims file, to include service treatment records and private treatment records. Then, the VA examiner should provide an opinion as to whether, based on the available evidence of record, it is at least as likely as not that the Veteran's anal disorder, to include anal cysts and hemorrhoids, was incurred in or is otherwise related to service, to include the in-service treatment for a severe UTI resulting in hematuria. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner must provide a complete rationale for his or her opinion with references to the evidence of record. 2. After all development has been completed, the RO/AMC should review the case again based on the additional evidence. If the benefit sought is not granted, the RO/AMC should furnish the Veteran with a Supplemental Statement of the Case, and should give the Veteran and his representative a reasonable opportunity to respond before returning the record to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs