Citation Nr: 1335962 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 07-38 826 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Entitlement to service connection for a bilateral leg disorder. 2. Entitlement to service connection for a bilateral knee disorder. 3. Entitlement to service connection for a bilateral ankle disorder. 4. Entitlement to service connection for a back disorder, claimed as arthritis and gout. 5. Entitlement to service connection for hypertension, including as a result of exposure to Agent Orange and secondary to service connection diabetes mellitus. 6. Entitlement to an initial disability rating in excess of 20 percent for diabetes mellitus. 7. Entitlement to a disability rating in excess of 40 percent for diabetic neuropathy of the left lower extremity. 8. Entitlement to a disability rating in excess of 20 percent for diabetic neuropathy of the right lower extremity. ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to September 1968, including service in the Republic of Vietnam. This appeal to the Board of Veterans' Appeals (Board) is from January 2007, November 2011, and October 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. The January 2007 rating decision denied the Veteran's claims for service connection for bilateral leg, knee, and ankle disorders, hypertension, and mononucleosis. The November 2011 rating decision continued the Veteran's disability rating of 20 percent for diabetes mellitus, type II. Finally, the October 2012 rating decision increased the Veteran's disability rating for diabetic neuropathy for the left lower extremity to 40 percent. In July 2013, the Board remanded this case for further development. In an August 2013 rating decision, the RO granted the Veteran's claim of entitlement to service connection for peripheral neuropathy of the bilateral upper extremities and assigned initial disability ratings of 20 percent for each extremity, effective July 12, 2013. The Veteran has not appealed either the initial ratings or the effective dates assigned to these disabilities and, therefore, they are no longer before the Board. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran does not have a bilateral leg disability, other than his already service-connected bilateral lower extremity diabetic neuropathy, that is related to his military service. 2. The preponderance of the evidence shows that a bilateral knee disability was not present in service or until many years thereafter, and is not related to service or to an incident of service origin. 3. The preponderance of the evidence shows that a bilateral ankle disability is not related to service or to an incident of service origin. 4. The preponderance of the evidence shows that a back disability was not present in service or until many years thereafter, and is not related to service or to an incident of service origin. 5. Despite the Veteran's presumptive exposure to herbicides due to his service in the Republic of Vietnam during the Vietnam era, the preponderance of the most competent and credible evidence of record shows that hypertension is not related to service, there is no evidence of hypertension within one year of service separation, and hypertension was not caused or aggravated by a service connected disability. 6. The preponderance of the evidence shows that the Veteran's diabetes mellitus has been manifested by the need for medication and requires a restricted diet, but does not result in regulation of activities. 7. The preponderance of the evidence shows that the Veteran's diabetic neuropathy of the right lower extremity results in neuritis analogous to no more than moderate incomplete paralysis of the sciatic nerve. 8. The preponderance of the evidence shows that the Veteran's diabetic neuropathy of the left lower extremity results in neuritis analogous to no more than moderately severe incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. A bilateral leg disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 2. A bilateral knee disability was not incurred in or aggravated by active service, and it may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). 3. A bilateral ankle disability was not incurred in or aggravated by active service, and it may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). 4. A back disability was not incurred in or aggravated by active service, and it may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). 5. Hypertension was not incurred in or aggravated by active service, it may not be presumed to have been incurred in service, and it was not caused or aggravated by a service connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.310 (2006); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). 6. The criteria for an initial disability rating in excess of 20 percent for diabetes mellitus, type II, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.119, Diagnostic Code 7913 (2013). 7. The criteria for a disability rating in excess of 20 percent for right lower extremity diabetic neuropathy due to diabetes mellitus have not been met. 38 U.S.C.A. §§ 1154(a) , 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.123, 4.124, 4.124a; Diagnostic Code 8620 (2013). 8. The criteria for a disability rating in excess of 40 percent for left lower extremity diabetic neuropathy due to diabetes mellitus have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.123, 4.124, 4.124a; Diagnostic Code 8620 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act The Veterans Claims Assistance Act (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist the appellant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2013). The requirements apply to all five elements of a service connection claim: Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, letters dated in March, April and November 2006, and July 2013 provided notice to the Veteran of what information and evidence was needed to substantiate his claims for service connection and increased ratings, including informing him of what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. These letters also advised him of the evidence needed to establish a disability rating and effective date for the claim on appeal. The case was last readjudicated in August 2013. VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, service personnel records, Social Security Administration (SSA) records, and private treatment records. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. Additionally, the Veteran was provided VA examinations with respect to the claims on appeal in October 2006, December 2006, June 2011, and July 2013. The Board finds that the July 2013 examinations and opinions are adequate, they considered all of the pertinent evidence of record, to include private treatment records, statements of the Veteran, and prior VA examinations. Further, the examiners provided complete rationales for the opinions stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations or opinions with respect to the issues on appeal has been met. In July 2013, the Board remanded the case for additional development. As discussed in the preceding paragraphs, VA and private treatment records have been obtained and the Veteran was afforded VA examinations in accordance with the remand directives. Therefore, the Board finds that the AOJ has substantially complied with the prior remand directives such that no further action is necessary in this regard. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran has been an active participant in the claims process by reporting for VA examinations, responding to notices, and submitting evidence and argument. Thus, the Veteran has been provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway; Dingess. II. Service Connection Claims The Veteran contends that his bilateral leg, knee, ankle, and back disabilities are due to his military service. He also asserts he suffers from hypertension, either as a result of his exposure to Agent Orange, or that it was caused or aggravated by his service-connected diabetes mellitus. So his claims are based on theories of direct, presumptive, and secondary service connection. When determining whether service connection is warranted, all potential theories of entitlement must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). Establishing service connection generally requires medical or, in certain circumstances, lay 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In September 2006, during the pendency of this appeal, there was an amendment to the provisions of 38 C.F.R. § 3.310. See 71 Fed. Reg. 52744 -47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen, it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of service connection based on aggravation may be made. This had not been VA's practice, which suggests the possibility that the recent change amounts to a substantive change in the regulation. For this reason, and because the Veteran's claim for hypertension was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which is more favorable to the claimant. Further, if a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309, such as hypertension and arthritis. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Other specifically enumerated disorders, including hypertension and arthritis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. With regard to herbicide exposure, VA laws and regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C.A. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he served in the Republic of Vietnam during the Vietnam war period. 38 C.F.R. § 3.307. For these Vietnam war Veterans, diseases associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The list of diseases associated with exposure to certain herbicide agents is as follows: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma) (but including adult fibrosarcoma, dermato fibrosarcoma protuberans, malignant fibrous histiocytoma, Liposarcoma, leiomyosarcoma, epithelioid leiomyosarcoma (malignant leiomyoblastoma), Rhabdomyosarcoma, Ectomesenchymoma, angiosarcoma (hemangiosarcoma and lymphangiosarcoma), proliferating (systemic) angioendotheliomatosis, malignant glomus tumor, malignant hemangiopericytoma, synovial sarcoma (malignant synovioma), malignant giant cell tumor of tendon sheath, malignant schwannoma, including malignant schwannoma with rhabdomyoblastic differentiation (malignant Triton tumor), glandular and epithelioid malignant schwannomas, malignant mesenchymoma, malignant granular cell tumor, alveolar soft part sarcoma, epithelioid sarcoma, clear cell sarcoma of tendons and aponeuroses, extraskeletal Ewing's sarcoma, congenital and infantile fibrosarcoma, and malignant ganglioneuroma). 38 C.F.R. § 3.309(e). Relevant to the Veteran's appeal, note 3 provides that for purposes of this section, the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of Ischemic heart disease. Id. In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. The third and final factor involves consideration of whether the opinion is supported by a reasoned analysis. In a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether the weight of the evidence supports the claim, or the weight of the positive evidence in favor of the claim is in relative balance with the weight of the negative evidence against the claim, and the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other issue, that reasonable doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (2013). As an initial matter, the Board notes that records from the SSA show the Veteran is in receipt of disability benefits for ischemic heart disease and diabetes mellitus, not for any conditions pertaining to the Veteran's legs, knees, ankles, back, or hypertension claims. In any event, the Board is not bound by the findings of disability and/or unemployability made by other agencies, including SSA. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (indicating the SSA's favorable determination, while probative evidence to be considered in a claim with VA, is not dispositive or altogether binding on VA since the agencies have different disability determination requirements). See also Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Moreover, the Veteran did not mention the existence of any of these disabilities when requesting SSA benefits, only the other conditions mentioned. Thus, because these SSA records do not specifically concern his claimed disabilities, but instead pertain to other already service-connected disabilities, these records are ultimately irrelevant and not determinative of whether he is entitled to service connection for the claimed disorders. Bilateral Leg Disability As an initial matter, the Board notes service connection for diabetes mellitus with associated bilateral lower extremity diabetes neuropathy is already in effect. Therefore, the remaining issue is whether the Veteran currently suffers from a different bilateral leg disability, aside from the already service connected bilateral lower extremity diabetic neuropathy. The Veteran's service treatment records are silent regarding any complaints, treatment or diagnoses pertaining to a bilateral leg disability. Since his separation from service, various private treatment records from a multitude of physicians dated through July 2013 show continuous complaints of pain in the lower extremities. Two statements from Dr. Lyons, dated in June and November 2006, both indicate he has had bilateral leg and joint stiffness, pain and weakness since his military service. He notes that the Veteran was diagnosed with osteoarthritis but does not indicate the location of the osteoarthritis, and stated the Veteran remained limited due to his bilateral leg problem. Dr. Lyons concluded that since the Veteran's leg problems seemed to initiate while he was in Vietnam, it "certainly seems logical that this would be service related." Further, a June 2010 record from Dr. Timoney notes the Veteran has well documented chronic neuropathic leg pain. He does not provide a separate diagnosis pertaining to the Veteran's legs. An August 2010 record from Dr. Haigney also indicates there is a history of arthritis, but it does not specify where the arthritis is located. In fact, at no point in the voluminous amounts of private treatment records is there a separate diagnosed bilateral leg disability, aside from the diabetic neuropathy for which the Veteran is already service-connected. In July 2013, the Board remanded this claim for a VA examination to determine whether the Veteran has a current bilateral leg disability, aside from the diabetic neuropathy. The July 2103 VA examiner indicated a review of the claims file was conducted, and the Veteran underwent a physical examination. Following the physical examination, the examiner failed to provide a diagnosis of a bilateral leg disability. In fact, it was concluded that the Veteran has diabetic neuropathy and his feet, ankles, knees, and legs are tender due to his diabetic neuropathy. Upon consideration of the above evidence, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a bilateral leg disability, under any theory of entitlement, as he does not have a current diagnosis, or persistent or recurrent symptoms of a disorder related to his military service. Furthermore, the Board finds the unfavorable conclusion of the July 2013 VA examiner to be clear and supported by the objective medical evidence. The examiner provided a reasoned medical explanation for why the Veteran does not have a bilateral leg disability that is separate and distinct from his already identified bilateral lower extremity diabetic neuropathy. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The statements submitted by Dr. Lyons in June and November 2006 stating the Veteran's bilateral leg disability, including a diagnosis of osteoarthritis, began in service and has continued since, are not supported by the evidence of record, as discussed. As a result, the Board accords great probative weight to the July 2013 VA examiner's opinion. Finally, the Veteran submitted several statements, along with those of family members and friends, attesting to the fact that he has pain and weakness in his legs, and suffers from. These lay persons are certainly competent to comment on these state that he experiences pain and weakness in his legs. Layno v. Brown, 6 Vet. App. 465 (1994). His reports of bilateral leg pain and weakness are also considered credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). However, his assertions are less probative than the contemporaneous medical evidence of record, which shows there is no separate diagnosis of a bilateral leg disability, aside from his already service-connected bilateral lower extremity diabetic neuropathy. Further, pain alone, without a diagnosis or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claims for service connection for a bilateral leg disability. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. Bilateral Knee, Ankles, and Back Disabilities As to the Veteran's claims for bilateral knees, ankles, and back disabilities, the evidence establishes he has current diagnoses. A private treatment record dated in June 2006 show the Veteran has osteoarthritis and degenerative joint diseases (DJD) in his knees. The July 2013 VA examiners also diagnosed the Veteran with DJD of the right and left knee. This examiner also provided diagnoses of DJD and degenerative disc disease (DDD) of the back, as confirmed by x-ray findings. Regarding the Veteran's ankle disability, x-rays taken during an October 2006 VA examination show the left ankle is normal. There is no comment on the right ankle. A July 2010 bone scan revealed that the Veteran has minor areas of increased activity in the left ankle, but no evidence of recent fracture or other significant abnormality. Nevertheless, the Board notes that an August 2010 private treatment record from Dr. Haigney refers generally to DJD of the ankles, presumably including the right and the left. Thus, the evidence shows the Board concludes the Veteran has current diagnoses for his claimed disabilities. Therefore, the determinative issue is whether any of these disabilities is attributable to the Veteran's military service. The service treatment records are completely silent regarding any complaints, treatment, or diagnoses pertaining to the knees in service. The Board notes that the absence of any relevant complaints or findings during his service is probative evidence against the notion that he had DJD of the knees while in service, albeit not altogether dispositive of whether he did or did not. See Struck v. Brown, 9 Vet. App. 145 (1996). Regarding the back disability, there is one reference to back pain in May 1967; however, his separation examination does not indicate a diagnosis pertaining to the back. Finally, a June 1968 service treatment record notes left foot pain, which, admittedly, is not his ankle. Regardless, x-rays taken at that time are negative as to any diagnosed disability affecting the foot/ ankle area. The Board notes there are numerous post-service private treatment records, which reflect treatment for his knees, ankles, and back beginning as early as 1991. These records show he continued to receive treatment throughout the entire appeals period. Further, there are numerous complaints of pain associated with these claimed disorders, as specifically noted by Dr. Ledesma in June 2006 and again in August and May 2010. In June 2006, Dr. Abrahamian submitted a statement in support of the Veteran's claims. She noted the Veteran reported stiffness in his knees and ankles for several months. The Veteran stated he suffered from gout in the right ankle during his service. Moreover, she noted the Veteran suffered from a left ankle sprain in 1991 and was given a cast. She concluded that the findings of the physical examination are consistent with mild arthritis and his most recent x-rays reveal osteoarthritis in the lower extremities. Consequently, based on the Veteran's statements that he had significant problems with his ankles dating back to his time in Vietnam and also based on the findings of osteoarthritis, she believes that he remained "somewhat limited due to his lower extremity symptoms." Further, she stated that it seems the symptoms did develop while he was in Vietnam. Dr. Abrahamian does not provide a rationale for her findings that the osteoarthritis of the lower extremities is due to the Veteran's military service, other than the Veteran's own reports. Also concerning the etiology of the claimed disorders, Dr. Lyons, a cardiologist, provided an opinion in a June 2009 record. Dr. Lyons stated that the Veteran was a Vietnam Veteran exposed to Agent Orange who has since developed several diseases, including osteoarthritis. However, Dr. Lyons does not specifically state where the osteoarthritis developed. In fact, there is no rationale to support Dr. Lyons' statement. In compliance with the Board's July 2013 remand directives, the Veteran was afforded a VA examination in July 2013. First, regarding the bilateral knee disability, the examiner noted the Veteran reported his knee problems began about 20 years ago, in 1993. The examiner specifically noted there was no evidence of in-service knee symptoms, or within one year of separation. Concerning the DJD and DDD of the lumbar spine, the July 2013 examiner indicated the Veteran was first diagnosed with these disabilities in 2000, and stated it was most likely due to aging and obesity. As for the bilateral ankle disability, the examiner stated the Veteran does not have any objective evidence of a diagnosed ankle condition. The examiner pointed to the fact that x-rays were essentially normal, and there were no documented ankle conditions diagnosed. Following a physical examination of the Veteran and a review of the claims file, the examiner concluded that the claimed conditions were less likely as not due to the Veteran's claimed in-service injury, event, or illness. As rationale, the examiner stated that the most likely cause of any ankle, knee, or back conditions was ageing and normal wear and tear due to lifestyle and employment choices. Finally, the examiner determined the Veteran's diabetic neuropathy does not aggravate his ankle, knee or back conditions. As stated, the July 2013 VA examiner determined the Veteran's bilateral ankle, knee, and back conditions are not attributable to his military service, on all theories of entitlement. Therefore, this VA examiner's opinions and the medical rationale of the opinions are where most of the probative value is derived, not from a mere review of the claims file, although that also is a consideration when the file contains evidence facilitating a more informed opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) ("[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion."). For these reasons, the Board finds that the July 2013 VA examiners' opinion is more probative than conclusory statements from Dr. Lyons and Dr. Abrahamian. Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases). First, Dr. Abrahamian merely stated it was her belief that the Veteran's symptoms began during service, but she does not provide a rationale for her opinion. Additionally, Dr. Lyons noted that he is a cardiologist, not an orthopedist. He also provided no rationale for his opinion and even admitted to a deficiency is knowledge. Thus, these opinions carry little, if any, weight. Nieves-Rodriguez. Based on the findings of the July 2013 VA examiner, there is no competent and credible medical evidence of a nexus (i.e., link) between the Veteran's bilateral ankle, knee and back disabilities and his military service, such that service connection may be established. Indeed, the only evidence to suggest these disabilities may be related to service come from the Veteran's unsubstantiated assertions. He has not shown himself to have the expertise to offer any probative opinions on a subject as technical as the cause of arthritis, and therefore, any such contention is not accorded any probative value. In this regard, the Veteran has also submitted numerous statements in support of his claims, both from himself and from his family members and friends. These statements all attest to the pain the Veteran has suffered as a result of his claimed disabilities, in addition to stiffness and walking with a limp. The Board acknowledges that the Veteran and his family and friends are competent to give evidence about what he has experienced, i.e., in this case, that he has experienced pain and suffers from a limp due to his various disabilities. However, as lay persons without proper medical training and expertise, they are not competent to provide probative medical evidence on a matter such as the diagnosis or etiology of degenerative joint disease and degenerative disc disease. For example, he is not competent to state that his currently diagnosed DJD or DDD is a result of his military service because the diagnoses of these conditions involves a complex medical issue relating to the disease process affecting tissues in the body. Jandreau. Because the preponderance of the evidence shows that the Veteran's bilateral ankles, knees, and back disabilities are not related to or had its onset in service, service connection must be denied. Hypertension Concerning the Veteran's claim of entitlement to service connection for hypertension, the RO already has conceded the Veteran's presumed exposure to Agent Orange. However, hypertension is not included in the list of diseases presumptively associated with Agent Orange exposure in Vietnam, as listed above. See 38 U.S.C.A. § 1116(a); 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See 72 Fed. Reg. 32,395 (2007). But even if, as here, a Veteran is found not entitled to a regulatory presumption of service connection, his claim still must be reviewed to determine whether service connection may be established alternatively on a direct incurrence basis by establishing the required causation. See Combee v. Brown, 34 F.3d 1039 (Fed Cir. 1994) (holding that a Veteran is not precluded from establishing service connection with proof of actual direct causation). The Veteran was initially diagnosed with hypertension in 2000, as indicated in his private treatment records, and the reports of the December 2006, June 2011, and July 2013 VA examiners. These records show his continuous treatment for hypertension since the initial diagnosis in 2000. Concerning in-service incurrence, there is no indication in the Veteran's service treatment records showing evidence of hypertension. The absence of any relevant complaints or findings during his service is probative evidence against the notion that he had hypertension while in service, albeit not altogether dispositive of whether he did or did not. See Struck v. Brown, 9 Vet. App. 145 (1996). There is also no evidence of hypertension in the year after the Veteran's period of service, or for many years thereafter. The first post-service evidence of any possible hypertension, or elevated blood pressure readings, is not until 2000, many years after the Veteran's period of service. Again, the record contains numerous private treatment records from various providers showing the Veteran's treatment for numerous disorders, including hypertension. Specifically, a March 2006 treatment record from Dr. Lyons shows that hypertension with no evidence of renal disease. Additional private treatment records dated through September 2012 also show the Veteran requires medications for his hypertension, and complaints of chest pain and pressure. The records, however, do not contain any etiological opinions as to whether the Veteran's hypertension is related to service or to his service-connected diabetes mellitus. The first VA examination of record relevant to this issue is dated in December 2006. Following a physical examination and review of the claims file, the examiner concluded that the Veteran's hypertension predated his diagnosis of diabetes by years and he had no renal dysfunction caused by diabetes at that time. Therefore, hypertension was not related to diabetes and it was not aggravated by diabetes as control was good. The Veteran was then afforded a VA examination primarily in connection with his claim for an increased rating for his diabetes and associated disorders in June 2011. The June 2011 VA examiner indicated the Veteran suffered from hypertension and that it required the use of continuous medication. However, no opinion as to the etiology of his hypertension was provided, including whether it is either due to the Veteran's military service, or secondary to the Veteran's diabetes. In compliance with the Board's July 2013 remand directives, he was provided another VA examination in July 2013. The examiner confirmed the diagnosis of hypertension with a date of onset in 2000. The examiner noted the Veteran is taking continuous medication for his hypertension. As to the etiology of the hypertension, the examiner concluded that it is less likely than not incurred in or caused by service. The examiner stated there is no objective evidence that the Veteran was diagnosed within one year of discharge in 1968. In fact, he acknowledged he was diagnosed in 2000. Further, the examiner stated his diabetes does not aggravate his hypertension because his renal functioning is normal. The July 2013 VA examiner stated that the Veteran's hypertension is not due to service on all theories of entitlement. Therefore, this VA examiner's opinion and the medical rationale of the opinion is where most of the probative value is derived, not from a mere review of the claims file, although that also is a consideration when the file contains evidence facilitating a more informed opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) ("[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion."). Regarding specifically the question of secondary service connection, there must be: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Here, however, the July 2013 VA examiner specifically determined there is no medical evidence of a nexus (i.e., link) between the Veteran's hypertension and his service-connected diabetes mellitus. By way of rationale, the examiner stated the Veteran's diabetes does not aggravate his hypertension because his renal functioning is normal. Therefore, entitlement to service connection on a secondary basis is not established. Id. Finally, the Board has considered the Veteran's and other lay statements in support of his claim. The Veteran is certainly competent to state when he was initially diagnosed with this disorder and in what order he received his diagnoses of diabetes and hypertension. Further, lay witnesses are also competent to report when they learned he was diagnosed with this disorder, or to any identifiable symptoms. Lay persons, however, are not competent to attribute this disability to either a diagnosis of diabetes, alleged exposure to Agent Orange, or his military service. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). He also is not competent to state what caused any underlying symptoms. In Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the Federal Circuit Court recognized lay evidence as potentially competent to support the presence of the claimed disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as treatment records. However, the Federal Circuit Court also went on to hold in Buchanan that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. Even in other precedent cases the Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Because the preponderance of the evidence shows that the Veteran's hypertension is not attributable to the Veteran's military service under any theory of entitlement, service connection must be denied. III. Higher Rating Claims Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Diabetes Mellitus The Veteran's service-connected diabetes mellitus is rated at 20 percent by the RO under the provisions of Diagnostic Code 7913. Under this regulatory provision: Diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated warrants a 100 percent disability rating; Diabetes mellitus requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated warrants a 60 percent disability rating; Diabetes mellitus requiring insulin, restricted diet, and regulation of activities warrants a 40 percent disability rating; Diabetes mellitus requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet, warrants a 20 percent disability rating; Diabetes mellitus manageable by restricted diet only warrants a 10 percent disability rating. 38 C.F.R. § 4.120, Diagnostic Code 7913. The Veteran was afforded a VA examination in December 2006. The evidence showed no ketoacidosis or hypoglycemic reactions, or hospitalizations for ketoacidosis or hypoglycemic reactions. He was noted to be following a restricted diet, but there was no restriction of activity due to diabetes. Further, while he was prescribed an oral hypoglycemic, he was not using it. The Veteran sees his diabetic care provider two to three times a year. No other diabetic symptoms were noted. The Veteran was afforded another VA examination in June 2011. The examiner noted the Veteran was still prescribed oral medications. The evidence showed no ketoacidosis or hypoglycemic reactions, or hospitalizations for ketoacidosis or hypoglycemic reactions. Again, he was noted to be following a restricted diet, but was not limited in his ability to perform strenuous activities. The Veteran complained of hot, tingling feet, tingling in the lower legs, and radiation of pain in his feet. He denied all other diabetic symptoms. In July 2013, following the Board's January 2013 remand, the Veteran was reexamined to address the severity of his diabetes mellitus. At that time, the examiner noted that the Veteran was treated with prescribed oral hypoglycemic agents. He specifically noted that the Veteran does not require regulation of activities as part of the medical management of his diabetes mellitus, and he visits his diabetic care provider less than two times per month. The Veteran has had no hospitalizations due to, or episodes of, ketoacidosis or hypoglycemia. Also of record are the Veteran's private treatment records. These extensive records show his diabetes is well documented, but there is no indication of additional mediations aside from the oral hypoglycemic. The Board acknowledges the Veteran's assertions that his diabetes has caused renal failure many times. He also states he has severely restricted activities. However, the December 2006, June 2011, and July 2011 VA examiners specifically found no restriction on activities. Further, the extensive and exhaustive medical records in the claims file do not support his assertions that he has suffered from renal failure many times, or that he has restricted activities that are due to his diabetes. As such, a disability rating in excess of 20 percent for diabetes mellitus is not warranted. Bilateral Lower Extremity Diabetic Neuropathy The Board also notes that the Veteran has been service connected for diabetic neuropathy of the lower extremities, rated at 20 percent for the right and 40 percent for the left. The Veteran's peripheral neuropathy is a symptom of his diabetes mellitus. Therefore, a higher rating for that separate manifestation of diabetes mellitus must also be considered in a claim of increased rating for diabetes mellitus. The Veteran's peripheral neuropathy is rated under Diagnostic Code 8620 for neuritis of the sciatic nerve. Under that regulation, mild neuritis with incomplete paralysis warrants a 10 percent rating, moderate neuritis with incomplete paralysis warrants a 20 percent rating, moderately severe neuritis with incomplete paralysis warrants a 40 percent rating and severe neuritis with incomplete paralysis with marked muscular atrophy warrants a 60 percent rating. Complete paralysis of the sciatic nerve where the foot dangles and drops, there is no active movement possible of muscles below the knee and flexion of the knee is weakened or (very rarely) lost warrants an 80 percent disability rating. 38 C.F.R. § 4.124a, Diagnostic Code 8620. The Veteran was initially granted service connection for bilateral lower extremity diabetic neuropathy in an October 2010 rating decision. The RO assigned initial disability ratings of 10 percent for both the right and left lower extremities, effective from October 26, 2006 to June 22, 2010, and 20 percent ratings, effective June 23, 2010. In May 2011, the Veteran filed a claim for increased ratings for his bilateral lower extremity diabetic neuropathy disabilities. In an October 2011 rating decision, the RO increased the Veteran's left lower extremity neuropathy was increased to 40 percent disabling, and continued the 20 percent rating for the right lower extremity. Therefore, the relevant temporal focus for these disabilities is from May 2010, one year prior the receipt of the claim for increased ratings. The Veteran's extensive private treatment records from numerous providers show that he consistently complained of pain in his lower extremities. A June 2010 orthopedic note found multiple neuropathies in especially involving the feet. Further, it was noted that there was evidence of chronic neuropathic leg pain. An August 2010 record from Dr. Haigney also determined the Veteran suffered from neuropathy associated with his diabetes. He concluded that the severity of the neuropathy in the lower extremities was moderate. During the June 2011 VA examination, the examiner confirmed a diagnosis of bilateral lower extremity peripheral neuropathy. The Veteran complained of hot, tingling feet, tingling in the lower legs, and radiation of pain in feet. Upon physical examination, vibration was normal in the right but absent in the left; pain and pinprick were decreased, bilaterally; position sense was normal, bilaterally; light touch decreased, bilaterally; and, there was no evidence of dysesthesia, bilaterally. The Veteran's deep tendon reflexes were normal in the bilateral knees and ankles. The examiner also noted the motor exam was normal for the right and left knee extension and flexion, and right and left ankle dorsiflexion and plantar flexion. Normal tone was normal and there was no indication of muscle atrophy. The examiner stated the lower right and left extremity diabetic neuropathy was a complication of diabetes, but did not describe the severity of the disabilities. Pursuant to the Board's January 2013 remand directives, the Veteran was again scheduled for a VA examination in July 2013 to reassess the severity of his bilateral lower extremity neuropathy. During the examination, the examiner determined he had constant and intermittent pain, parasthesias and/ or dysesthesia, and numbness in both lower extremities. His strength was noted as 5/5 in the knee extension, knee flexion, ankle plantar flexion, and ankle dorsiflexion ranges. Deep tendon reflexes were normal in the right and left knees and decreased in the right and left ankles. Light touch testing was decreased in the knees, thighs, ankles, lower legs, feet, and toes. Vibration sensation was decreased. The examiner found no muscle atrophy. Based on these findings, the examiner provided a diagnosis of moderate incomplete paralysis of sciatic nerve for both the right and left lower extremities. As the record indicates moderate symptoms of diabetic neuropathy and a specific finding of moderate incomplete paralysis of the sciatic nerve, the Board finds that the preponderance of the evidence does not show symptoms meeting the criteria for disability ratings in excess of 20 percent for the right lower extremity and 40 percent for the left lower extremity diabetic neuropathy. Based on the evidence of record, the Board finds that the preponderance of the evidence shows that the manifestations of his bilateral lower extremity diabetic neuropathy do not warrant ratings higher than 20 percent for the right and 40 percent for the left. As such, there is no basis to stage this claim, and the Board finds that the preponderance of the evidence is against the claim. Extraschedular Consideration The RO must refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular rating where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b) (1) (2013). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required. Id. at 116. The Board finds that the rating criteria contemplate the Veteran's disabilities for diabetes mellitus and bilateral lower extremity diabetic neuropathy. The Veteran's diabetes mellitus requires the use of oral hypoglycemic agents and visits to his diabetic care provider less than two times per month, but does not require regulation of activities. Further, his left lower extremity diabetic neuropathy is characterized as moderately severe, while his right lower extremity is characterized as moderate. These manifestations are contemplated in the applicable rating criteria. As such, the Board finds that the Veteran has not described other functional effects that are "exceptional" or not otherwise contemplated by the assigned evaluation. Rather, his description of his diabetes symptomatology is consistent with the degree of disability addressed by the rating criteria. Therefore, the rating criteria are adequate to evaluate the Veteran's disability and referral for consideration of an extraschedular rating is not warranted. The Court has held that entitlement to total disability based on individual unemployability (TDIU) is an element of all appeals for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU is raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Here, the Veteran has already been granted individual unemployability in a separate rating decision and as noted above has not challenged the effective date assigned for that determination. The Board thus does not have jurisdiction over the issue. See Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011). As such, the issue is not addressed in this decision. As a final point, in reaching these determinations, the Board acknowledges the Veteran's decorated service. Although the Board is sympathetic to the Veteran's claims, because the preponderance of the evidence is against entitlement to the benefits sough, the Board is without authority to grant the claims on an equitable basis and instead is constrained to follow the specific provisions of law. See 38 U.S.C.A. § 7104 (West 2002); Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). ORDER Service connection for a bilateral leg disorder is denied. Service connection for a bilateral knee disorder is denied. Service connection for a bilateral ankle disorder is denied. Service connection for a back disorder, claimed as arthritis and gout, is denied. Service connection for hypertension is denied. A disability rating excess of 20 percent for diabetes mellitus is denied. A disability rating in excess of 40 percent for diabetic neuropathy of the left lower extremity is denied. A disability rating in excess of 20 percent for diabetic neuropathy of the right lower extremity is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs