Citation Nr: 1338970 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 08-05 070 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a left leg disability. 3. Entitlement to service connection for a bilateral foot disability, to include flat feet and degenerative arthritis, to include as secondary to knee disability. 4. Entitlement to an effective date earlier than December 23, 2009 for the award of service connection for left shoulder scar. 5. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. J. In, Counsel INTRODUCTION The Veteran served on active duty from June 1964 to June 1966. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Veteran provided testimony at an April 2010 hearing before the undersigned Veterans Law Judge of the Board held at the RO. A transcript of that hearing is associated with the claims file. This case was previously before the Board in December 2010 and was remanded for additional development. For the reasons discussed below, the Board finds that there has been substantial compliance with its December 2010 remand with respect to the issues decided herein. See Stegall v. West, 11 Vet. App. 268 (1998). The issues of entitlement to service connection for bilateral foot disability, to include flat feet and degenerative arthritis, to include as secondary to knee disability, entitlement to an effective date earlier than December 23, 2009 for the award of service connection for a left shoulder scar, and whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right knee disability, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's left knee disability, diagnosed as osteoarthritis of the left knee, was initially demonstrated many years after service, and has not been shown by the most probative competent clinical, or competent and credible lay, evidence to be causally related to the Veteran's active service. 2. There has been no demonstration by the most probative competent clinical, or competent and credible lay, evidence that the Veteran's left leg disability, diagnosed as peripheral neuropathy of the left lower extremity, is related to his military service. CONCLUSIONS OF LAW 1. A left knee disability was not incurred in, or aggravated by, active service, nor may it be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. A left leg disability was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claims. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). VA correspondence dated in March 2007 advised the Veteran of the necessary elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Specifically, the Veteran was informed of what evidence was required to substantiate the claims for service connection, of his and VA's respective duties for obtaining evidence. It also notified him that a disability rating and effective date would be assigned, in the event of award of the benefit sought, as required by the Court in Dingess/Hartman. The March 2007 VA notice was provided prior to the July 2007 initial adjudication, in compliance with Pelegrini. The purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims, including the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). The Board concludes that VA's duty to assist has also been satisfied. The Veteran's service treatment records and post service medical records, as well as his lay statements, are associated with the claims file. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In compliance with the Board's December 2010 remand, in correspondence dated in December 2010, the RO solicited from the Veteran any treatment records or information in support of his claims; however, no response has been received. The RO also provided the Veteran appropriate VA examinations in February 2011 and January 2012. Green v. Derwinski, 1 Vet. App. 121 (1991) (holding that the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran). The Board finds that, the VA examinations and opinions are adequate in addressing the issues of left knee and left leg disabilities, as the opinions are predicated on an examination of the Veteran and a review of his claims file, as well as consideration of the Veteran's reported history. The opinions considered the pertinent evidence of record, to include the Veteran's lay statements, and a rationale was provided for the opinions proffered. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Based on the foregoing, the Board finds the RO substantially complied with the Board's December 2010 remand directives with respect to the Veteran's left knee and left leg claims. See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). The provisions of 38 C.F.R. § 3.103(c)(2) (2013) require that the Decision Review Officer (DRO) who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) (2013) also requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill the same duties to comply with the above the regulation. During the Board Travel Board hearing, the VLJ identified the issues and noted the elements of the claims that were lacking to substantiate the claims for service connection. The VLJ solicited information as to any pertinent potentially available outstanding evidence. The VLJ asked questions to ascertain the onset of symptoms, duration of symptoms, and any nexus between current disabilities and service. The Veteran was assisted at the hearing by an accredited representative from the American Legion. The Veteran and his representative argued that the VA medical examination conducted in conjunction with the claims on appeal was inadequate, and accordingly, on remand, another VA examination was conducted. Otherwise, no pertinent evidence that might have been overlooked and that might substantiate the claims was identified by the Veteran or the representative that has yet to be obtained. Thus, the submission of overlooked evidence was not only suggested, but obtained. The hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for service connection. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Law and Analysis Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection for certain chronic diseases, such as arthritis, will be presumed if they are manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. In addition, 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 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). Generally, in order to establish service connection for the claimed disorders, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In certain circumstances, lay evidence may also be competent to establish a medical diagnosis or medical etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). The Board is to consider all lay and medical evidence as it pertains to the issues. 38 U.S.C.A. § 7104(a) ("decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) (VA "shall consider all information and lay and medical evidence of record in a case"); 38 C.F.R. § 3.303(a) (service connection claims "must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence."). 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."). 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Veteran contends that his left knee and left leg disabilities are due to an in-service fall accident. He also contends that such disabilities were incurred during the performance of his military duties, including climbing and jumping off helicopters. At his April 2010 hearing before the Board, the Veteran testified that he served in the Army as a single-engine aircraft and helicopter mechanic for two years, during which time he was exposed to a great deal of physical activity, including climbing up ladders, stretching, twisting, and jumping off and onto helicopters. He further testified that in additional to the everyday stress and strain of the Veteran's duties he injured both his knees in performance of his duties. He described that he was on top of a helicopter and was knocked off by the blade with sudden start of the motor, which caused him to fall about six feet to the cement runway, landing on both knees. He experienced severe knee pain, went to sick call, was given pain medications and returned to duty. In a February 2007 statement, the Veteran stated "[t]he pain never went away, but I had my job to do and continued to perform my duty. This duty consisted of a lot of climbing, and jumping off the helicopter. I noted that I was also having pain in my left leg...After I was discharged my knees and left leg continued to get worse." The Veteran's Form DD-214 shows that his military occupational specialty (MOS) was a helicopter mechanic. Thus, in light of the evidence of record, and the Veteran's competent statements regarding the nature of his military work duties, the Board finds that it would have been consistent with the circumstances of his military service for his duties as a helicopter mechanic to require strenuous physical activities involving use of his left knee and left leg. 38 U.S.C.A. § 1154(a). As such, the Board concedes that the Veteran was exposed to strenuous physical activity in service. The Veteran's service treatment records are negative for any left knee or left leg condition. In an April 1965 service treatment report, the Veteran complained of right knee "out of joint" three days previously. It was noted that he bumped it while down on the flight line on a helicopter. In the report of medical history completed for his May 1966 separation examination, the Veteran denied any swollen or painful joints, cramps in the legs, "bone, joint, or other deformity," lameness, or "trick" or locked knee. Clinical examination of the lower extremities was normal. In a July 2004 VA emergency department note, the Veteran complained of left knee pain for a week following a fall down accident that twisted his left knee. An August 2004 VA orthopedic clinic note reflects that the Veteran was seen for left knee pain. He stated that he fell down and injured his left knee approximately three weeks ago. He felt like he twisted his knee and reported significant pain. He denied any previous injury or pain in his knee that was significant like this. X-ray of the left knee showed early changes of arthritis in the knee and a small bony exostosis arising from the medial aspect of his distal femoral femur; his knee was otherwise unremarkable. The assessment was a mild left medial cruciate ligament sprain. In an October 2005 VA orthopedic clinic note, the Veteran was seen for follow-up for his left knee pain. It was noted that X-ray of the left knee showed mild medial space narrowing, no osteophytes and good patellar trochlear space. The assessment was early degenerative osteoarthritis of the left knee medial compartment and patellofemoral joint. VA treatment records dated from June 2006 to January 2007 reflect the Veteran's lower extremity edema. He was wearing compression stocking. In a September 2006 VA treatment report, the Veteran complained of bilateral lower extremity pain for two years. He stated "I fell a couple of times and stumbles because I can't feel my legs that well." In October 2006, X-ray studies revealed mild medial compartment degenerative changes in the left knee. The Veteran was provided a VA examination in June 2007. The VA examiner indicated that the claims file was reviewed. The Veteran reported that he injured both his knees when he fell down on a cement floor from the top of a helicopter in 1965. He experienced sharp bilateral knee joint pain and was seen by the local medical personnel; however, no specific diagnosis was noted. He stated that he was fairly well until 1994 when his diabetes mellitus, type 2, was diagnosed, at which time he gradually developed peripheral neuropathy and experienced difficulty keeping balance. The Veteran reported that, in July 2004, he fell down and experienced severe left knee joint pain, and that X-ray studies revealed a tear of the left meniscus. He indicated that after 2004, he had numerous episodes of falling down because of difficulty with keeping his balance and he experienced pain, mostly in his left knee, after falling down. Following physical examination, the pertinent diagnosis was mild medial compartment degenerative changes of the left knee. The examiner stated that "[c]urrent medical examination is not sufficient to confirm the relation of the veteran's current bilateral knee mild degenerative joint disease...and history of possible injury which the veteran experienced after he fell down in 1965 while he was in a military service." In a September 2009 written statement, the Veteran's former service comrade, M.R., indicated that he served with the Veteran in the Army in Korea and witnessed the incident in 1965 where the Veteran fell off an aircraft land on his knees on concrete. It was recalled that the Veteran complained of knee pain after the incident and was subsequently given several days of light duty. He also recalled the Veteran mentioning his ongoing knee problems over the years. In April 2010, the Veteran submitted photograph of himself on top of a helicopter while in service. The Veteran underwent another VA examination in February 2011. The Veteran reported constant pain in the knees associated with weakness, stiffness, swelling and instability. The examiner set forth detailed examination findings. The diagnosis was mild bilateral knee osteoarthritis. After conducting a review of the claims file and clinical examination of the Veteran, the examiner opined that the Veteran's current condition was "not a result of or aggravation of events which occurred while in the military." In support of this opinion, the examiner noted that although the Veteran initially sustained a right knee contusion in 1965, service treatment records documented no further treatment or evaluation for the knee and contusions typically are self-limiting conditions which do not result in chronic, ongoing conditions. The examiner added that the Veteran remained in the military for another full year without treatment for an ongoing condition of the knee, and the separation examination revealed no problems in regards to a knee condition. The examiner further noted that the Veteran began to have documented evidence of significant left knee pain after a fall in 2004, characterized as an acute injury which had occurred 38 years after service, and that he subsequently had ongoing discomfort in the knee after this injury. It was observed that there was no evidence of a left knee condition while in the military, and no evidence of aggravation of the left knee condition due to the right knee condition. Based on the foregoing, the examiner concluded that there was no evidence that the Veteran had a knee condition due to his strenuous physical activity that his duties as a helicopter mechanic required while in service. The Veteran was provided another VA examination in January 2012. The VA examiner indicated that the claims file was reviewed. The Veteran reported that most of his left leg problem was with the left knee region with occasional left hip pain. He stated that he occasionally had swelling of the lower legs in the past but that was under much better control and he had a history of diabetic neuropathy of the bilateral lower extremity. He gave the history of his fall from atop of a helicopter while stationed in Korea during service. On review of the medical records, the examiner noted that in service, the Veteran was seen for a complaint of a right knee injury in April 1965, however, that it was the subjective complaint and no examination or diagnosis was noted. It was further noted that the Veteran's separation physical in May 1966 mentioned no complaints with swollen or painful joints and the examination was unremarkable for any orthopedic pathological problems. The Veteran stated, however, that his separation physical was not very thorough and he just wanted to go home at the time of the examination. He further stated that after service, he remembered that during the 1970s he favored his right knee and shifted weight to the left leg a lot and he did that for over 30 years. The Veteran also gave a history of his July 2004 fall injury when his left leg gave out and he was taken to the emergency room and was diagnosed with a crushed meniscus. He had been followed up with orthopedic evaluation for this left knee condition since that time. On physical examination, the Veteran denied any problem with the left thigh or left calf region but he got numbness from the ankles to the foot. After conducting a clinical examination of the Veteran's lower extremities, the examiner opined that the Veteran's right knee contusions resolved without residuals in service as no ongoing problems were shown within the first 5 to 10 years after the military service with the right knee. The examiner further stated that the bilateral knee osteoarthritis was not caused by military service because despite the history of right knee injury in service and left knee twisting injury in 2004, X-rays of the bilateral knees revealed symmetrical osteo degenerative changes, which indicated that they took place over time. With regard to the left leg, specifically, the examiner opined that the Veteran's left leg diabetic neuropathy was not caused or aggravated by the military service. In support of this opinion, the examiner noted that the diabetic peripheral neuropathy was caused by the Veteran's diabetes, which was initially diagnosed in the late 1990s, and there were no other left leg pathological conditions that were present with the joints, muscular, vascular, or neurology on examination. After considering the totality of the evidence of record, the Board concludes that service connection is not warranted for a left knee or left leg disability. As an initial matter, the Veteran has current diagnoses of osteoarthritis of the left knee and peripheral neuropathy of the left leg, as documented by the Veteran's VA treatment records and VA examination reports. See Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). To that effect, an August 2004 VA treatment report noted an assessment of mild left medial cruciate ligament sprain. In October 2005, X-ray of the left knee showed mild medial space narrowing and the assessment was early degenerative osteoarthritis of the left knee medial compartment and patellofemoral joint. In October 2006, X-ray studies revealed mild medial compartment degenerative changes in the left knee. The June 2007 VA examination report gave a diagnosis of mild medial compartment degenerative changes of the left knee, and the February 2011 VA examination report confirms a diagnosis of mild left knee osteoarthritis. With regard to the left leg, VA treatment records dated from June 2006 to January 2007 reflect the Veteran's lower extremity pain and edema. During the January 2012 VA examination, the Veteran reported that most of his left leg problem was with the left knee region, with occasional left hip pain, and the VA examiner noted that there were no other left leg pathological condition that was present on with the joints, muscular, vascular, or neurology examination other than the Veteran's left leg diabetic neuropathy. However, the Veteran's left knee and left leg disabilities were first manifested many years after service and have not been shown to be etiologically related to service. Although in an April 1965, the Veteran was treated for his right knee following a fall down on the flight line on a helicopter, the Veteran's service treatment records are negative for any left knee or left leg condition. Furthermore, in the report of medical history completed for his May 1966 separation examination, the Veteran denied any swollen or painful joints, cramps in the legs, "bone, joint, or other deformity," lameness, or "trick" or locked knee; clinical examination of the lower extremities was normal. The first medical evidence of a left knee condition was in July 2004 when the Veteran was seen in the emergency room after twisting his left knee in an accident. The Veteran's lower extremity edema was first noted in a June 2006 VA treatment report. As such, the Board finds that the Veteran's current left knee disability, including arthritis, did not manifest in service or within one year after separation from service. The Veteran does not contend, and the record does not demonstrate, that he had arthritis of the left knee manifesting to a compensable degree within one year of separation from service. Therefore, service connection for osteoarthritis of the left knee is not warranted on a presumptive direct incurrence basis. See 38 C.F.R. §§ 3.307, 3.309. The Veteran has stated that he hurt both his knees in the April 1965 accident in service and that his knees had been hurting since that time. As noted above, the Veteran's claimed right knee injury is consistent with his military duties as a helicopter mechanic and is also supported by his service treatment records. Therefore, the Board finds the lay statements from the Veteran and M.R. to be competent and credible evidence as to the claimed fall accident in April 1965. However, to the extent that the Veteran is claiming continuity of symptomatology of left knee arthritis, the Board finds that while the Veteran is competent to state that he had knee pain since active service, he is not credible with respect to his reports related to onset or continuity of symptoms since active service. To that effect, the Federal Circuit recently held that continuity of symptomatology under 38 C.F.R. § 3.303(b) only applies to those conditions recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran's disability is diagnosed as arthritis and recognized as a chronic condition. 38 C.F.R. § 3.309(a). Nevertheless, the Board notes the 38 year gap between separation from service and the first record of a diagnosis of left knee medial cruciate ligament sprain in August 2004. Indeed, at that time, the Veteran denied any previous injury or pain in his knee that was as significant as the one that he experienced following the July 2004 twisting injury. The Board does not find it reasonable that the Veteran would be experiencing knee problems since service and not mention such problems during medical treatments sought specifically for his left knee. Furthermore, on his May 1966 separation examination, the Veteran denied any swollen or painful joints, "bone, joint, or other deformity," lameness, or "trick" or locked knee. Thus, the Veteran's assertions of continuity of symptomatology are inconsistent with the other evidence in the claims file. See Indiana Metal Prods. v. NLRB, 442 F.2d 46, 51-52 (7th Cir. 1971) (citations omitted) (noting that "definitions of credibility do not necessarily confine that concept to the narrow peg of truthfulness. It has been termed as 'the quality or power of inspiring belief. . . .' Credibility . . . apprehends the over-all evaluation of testimony in the light of its rationality or internal consistency and the manner in which it hangs together with other evidence."). In light of the above, the Board finds that service connection based on continuity of symptomatology is not warranted. Furthermore, the opinions of the VA examiners in February 2011 and January 2012 conclude that the Veteran's current osteoarthritis of the left knee and peripheral neuropathy of the left leg were not related to military service. In support of this opinion, the examiner stated that the left knee osteoarthritis is less likely related to the Veteran's military service, including the 1965 fall accident resulting in contusion of the right knee, which was a self-limiting condition, and that it is more than likely the left knee osteoarthritis is related to the 2004 post-service injury, subsequent to which the Veteran had ongoing discomfort in the knee. Similarly, the January 2012 examiner concluded that the Veteran's left knee osteoarthritis was not caused by military service because the symmetrical osteo degenerative changes of the bilateral knees shown on X-ray indicated that they took place over time. With regard to the left leg, the January 2012 VA examiner opined that the Veteran's left leg peripheral neuropathy was not caused or aggravated by the military service, but was caused by the Veteran's diabetes, which was initially diagnosed in the late 1990s. The Board finds these VA opinions to be competent, highly probative medical evidence as to whether the Veteran's current left knee and left leg disabilities were caused by his service. They were based on a thorough review of the Veteran's records, including the personal interview with the Veteran, and were supported by an adequate rationale consistent with the other medical evidence of record. There is no other controverting medical opinion of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board is prohibited from substituting its own medical judgment in place of the opinions of competent medical professionals). The Board recognizes that in certain unique instances, lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, the cause of osteoarthritis or peripheral neuropathy is a complex issue that cannot be determined based on mere personal observation by a lay person and is typically determined by persons with medical training. See Jandreau, 492 F.3d at 1376-77; see also Davidson, 581 F.3d at 1316. The Veteran has not been shown to have had the requisite medical training. Thus, the Veteran is not competent to render a medical diagnosis or opinion as to etiology of left knee osteoarthritis or left leg peripheral neuropathy in this case. Based on the evidence of record, the Board finds that a preponderance of the evidence is against the claims for service connection for left knee and left leg disabilities. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable, and the claims must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a left leg disability is denied. REMAND Bilateral Foot Disability The Veteran contends that he has bilateral foot disability that is secondary to the in-service fall accident in 1965 in that it resulted from an altered gait in an effort to favor his knees. He also contends that the disability was incurred during the performance of his military duties, including climbing and jumping off helicopters. As adjudicated above, service connection has been denied for a left knee disability. The record reflects that the Veteran previously filed a claim for entitlement to service connection for a right knee disability, and it was denied in a June 2008 rating decision. He filed a notice of disagreement to that rating decision and a statement of the case was issued in July 2009, however, the Veteran did not timely perfect an appeal. In a May 2010 written statement, the Veteran indicated that he wished to reopen the claim of entitlement to service connection for a right knee disability. This claim has not been adjudicated by the Agency of Original Jurisdiction (AOJ). However, the Board finds that the claim to reopen the claim for service connection for a right knee disability is inextricably intertwined with the issue on appeal of entitlement to service connection for bilateral foot disability. As such, the claim to reopen a claim for service connection for a right knee disability must be adjudicated prior to appellate consideration of the bilateral foot disability appeal. In conjunction with this claim, the Veteran was provided VA examinations in June 2007 and February 2011. The June 2007 examiner diagnosed flat feet with compensatory pronation, but did not provide a medical opinion as to the etiology of the bilateral foot disability. The February 2011 VA examiner noted a diagnosis of bilateral lower extremity peripheral neuropathy due to diabetes, type 2, and opined that the Veteran's current condition is not a result of or aggravation of events which occurred while in the military, or of his left knee condition because medical records documented that the Veteran began to have pain in the feet and lower extremities in approximately 2002 at the time of his diagnosis of diabetes and he was diagnosed with bilateral lower extremity peripheral neuropathy and neuropathic pain due to diabetes. However, the examiner did not address the etiology of the Veteran's flat feet or degenerative arthritis. In this regard, X-rays of the feet at the February 2011 VA examination, revealed minimal degenerative changes in the first metatarsophalangeal joint of the right foot and mild degenerative changes in the first metatarsophalangeal and talonavicular joints of the left foot. Therefore, the Board finds this examination is not adequate for VA purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that if VA provides a Veteran with an examination in a service connection claim, the examination must be adequate); see also Stegall v. West, 11 Vet. App. 268 (1998). Given the deficiencies in the June 2007 and February 2011 VA examination reports, the Board must remand this case for a supplemental medical nexus opinion. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board is prohibited from substituting its own medical judgment in place of the opinions of competent medical professionals). Earlier Effective Date In a February 2010 statement, the Veteran argued that a February 2010 rating decision made a clear and unmistakable error in assigning December 23, 2009 as the effective for the award of service connection for the Veteran's left shoulder scar. In this regard, the U. S. Court of Appeals for Veterans Claims (Court) has held that there is no basis for a free-standing earlier effective date claim from matters addressed in a final and binding rating decision. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). Since, however, this statement was received well within the one year the Veteran had to appeal the February 2010 rating decision granting service connection for left shoulder scar, the Board construes that this is, in actuality, a timely notice of disagreement (NOD) with the effective date for the award of service connection for this condition in that decision. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.201 (2012); see also Gallegos v. Gober, 14 Vet. App. 50 (2000) (VA should liberally interpret a written communication that may constitute an NOD under the law), rev'd sub nom Gallegos v. Principi, 283 F. 3d 1309 (Fed. Cir. 2002) (the language of § 20.201 properly implemented 38 U.S.C.A. § 7105, and assuming that the [claimant] desired appellate review, meeting the requirement of § 20.201 was not an onerous task); see also Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (indicating the claimant had to separately appeal this "downstream" effective date issue). The filing of a NOD initiates the appeal process. See Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995). As such, the issue of entitlement to an effective date earlier than December 23, 2009 for the award of service connection for a left shoulder scar is properly before the Board as listed on the title page of this decision. However, to date, the RO has not issued a statement of the case (SOC) addressing this issue. Therefore, pursuant to the holding in Manlincon v. West, 12 Vet. App. 238 (1999), the Board must remand this claim for issuance of a SOC. Accordingly, the case is REMANDED for the following action: 1. Obtain any updated VA treatment records from the VA Medical Center in Minneapolis, Minnesota, and any associated outpatient clinics dated from June 2007 to the present. All records and/or responses received should be associated with the claims file. 2. Thereafter, adjudicate the issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right knee disability. Notice of the determination and the Veteran's appellate rights should be issued to the Veteran and his representative. If the benefit sought is not granted, the issue should be forwarded to the Board only if an appeal is timely completed. 3. Following completion of the above requested action, obtain a supplemental medical opinion from the VA examiner who conducted the February 2011 VA examination, if available, to determine any relationship between any currently diagnosed foot disability, specifically including flat feet and degenerative arthritis, and the Veteran's military service, or right knee disability. If the February 2011 VA examiner is not available, schedule the Veteran for a VA examination by an individual with the appropriate expertise in order to determine whether any current foot disability is related to the Veteran's period of service, or right knee. The claims file should be made available to the examiner in conjunction with the examination. Any and all indicated evaluations, studies, and tests should be accomplished. The examiner should (1) identify all foot disabilities found to be present, and (2) for each foot disability found, provide an opinion as to: * Whether it is at least as likely as not (50 percent or greater probability) that such disability is related to the Veteran's military service, to include the documented in-service right knee symptomatology and to include the strenuous physical activity that the Veteran's duties as a helicopter mechanic required, as conceded by VA, (including climbing up ladders, stretching, twisting, and jumping off and onto helicopters)? * Whether it is at least as likely as not (50 percent or greater probability) that such disability is proximately due to, or chronically aggravated by, the Veteran's right knee disability? A complete rationale for all opinions expressed should be provided. In rendering the opinion, the VA examiner is asked not rely solely on the lack of documentation of treatment in service as the basis for an opinion concerning etiology. 3. The Veteran should be notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). 4. Issue a Statement of the Case, and notify the Veteran of his appellate rights, with respect to the issue of entitlement to an effective date earlier than December 23, 2009 for the award of service connection for a left shoulder scar. 38 C.F.R. § 19.26 (2012). In the notice and Statement of the Case, remind the Veteran that to vest the Board with jurisdiction over the issue, a timely substantive appeal to the February 2010 rating decision to the extent it denied an earlier effective date, must be filed. 38 C.F.R. § 20.202 (2012). If the Veteran perfects an appeal as to the issue, return the issue to the Board for appellate review. 5. After completing the above development, and any other development deemed necessary, readjudicate all claims on appeal taking into consideration any newly acquired evidence. If any benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs