Citation Nr: 1545063 Decision Date: 10/22/15 Archive Date: 10/29/15 DOCKET NO. 12-23 363 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a right ankle disorder and, if so, whether service connection is warranted. 2. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a left ankle disorder and, if so, whether service connection is warranted. 3. Entitlement to service connection for a fracture of the right, fifth toe. 4. Entitlement to service connection for a right leg disorder. 5. Entitlement to service connection for a left leg disorder. 6. Entitlement to service connection for left wrist arthritis associated with an in-service wrist fracture. REPRESENTATION Appellant represented by: J. Michael Woods, Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A.L. INTRODUCTION The Veteran served on active duty from November 1973 to August 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by various Department of Veterans Affairs (VA) Regional Offices (ROs). In a September 2010 rating decision, the RO in Waco, Texas denied service connection for right and left leg disorders and denied reopening claims for service connection for right and left ankle sprains (originally claimed as bilateral ankle sprain). In June 2012, the Veteran testified during a hearing before a Decision Review Officer (DRO), as to the issues of the right and left legs and the right and left ankles. A transcript of that hearing is of record. At that time, the Veteran indicated that he disagreed with his denial of service connection for his ankles, though he had previously not filed a notice of disagreement (NOD) with those issues. Although the Veteran's NOD was not timely as to the ankle issues, the RO has continued its adjudication of that matter, and the Veteran subsequently perfected his appeal by filing a timely substantive appeal. As such, the Board will continue to treat this matter as on appeal. In a September 2013 rating decision, the RO in Lincoln, Nebraska denied service connection for arthritis of the left wrist and right fifth toe fracture. In March 2015, the RO in Houston, Texas denied reopening a service connection claim for a bilateral ankle sprain. The matters on appeal are currently under the jurisdiction of the RO in Houston, Texas. In November 2014, the RO scheduled the Veteran for a hearing before a member of the Board, for December 2014. However, prior to that time, in a November 2014 statement, the Veteran withdrew his request for a hearing. The hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d). As a final preliminary matter, the Board notes that the claims file reflects that the Veteran was previously represented by the Texas Veterans Commission (as reflected in a January 2010 VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative). In October 2014, the Veteran indicated his desire to appoint Attorney J. Michael Woods as his attorney. (October 2014 VA Form 21-22a, Appointment of Individual as Claimant's Representative). The Board recognizes the change in representation. The issues of entitlement to increased ratings for residuals of fractures of the left, fifth toe and the left wrist have been raised by the record, in May 2014. The Veteran also raised a claim for service connection for tinnitus in September 2014. These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). The issues of entitlement to service connection for right and left leg disorders are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a final decision issued in March 1980, the Board denied service connection for residuals of bilateral ankle sprain. In September 1987, the RO continued the denial of service connection for a chronic, bilateral ankle disability. 2. Evidence added to the record since the final September 1987 RO decision does not relate to unestablished facts necessary to substantiate the Veteran's claim of entitlement to service connection for a right or left ankle disorder. 3. Competent, probative evidence does not indicate that the Veteran has, or, at any time pertinent to this appeal has had, a right, fifth toe disorder. 4. Competent, probative evidence does not indicate that the Veteran has, or, at any time pertinent to this appeal has had, left wrist arthritis. CONCLUSIONS OF LAW 1. The March 1980 Board decision that denied service connection for residuals of bilateral ankle sprain is final. 38 U.S.C.A. §§ 7104, 7266 (West 2014); 38 C.F.R. §§ 20.1100, 20.1104, 20.1105 (2015). 2. The September 1987 RO decision that denied service connection for is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2015). 3. New and material evidence has not been received to reopen the claim of entitlement to service connection for a right and/or left ankle disorder. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015). 4. The criteria for service connection for a right, fifth toe disorder are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2015). 5. The criteria for service connection for left wrist arthritis are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information regarding the disability rating and effective date for the award of benefits if service connection is awarded. Id. at 486. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. The U.S. Court of Appeals for the Federal Circuit previously held that any errors in notice required under the VCAA should be presumed to be prejudicial to the claimant unless VA shows that the error did not affect the essential fairness of the adjudication. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Under Sanders, VA bore the burden of proving that such an error did not cause harm. Id. In the case Shinseki v. Sanders, 129 S.Ct. 1696 (2009), however, the U.S. Supreme Court held that the Federal Circuit's blanket presumption of prejudicial error in all cases imposed an unreasonable evidentiary burden upon VA. Rather, in Shinseki v. Sanders, the Supreme Court suggested that determinations concerning prejudicial error and harmless error should be made on a case-by-case basis. Id. As such, in conformance with the precedents set forth above, on appellate review the Board must consider, on a case-by-case basis, whether any potential VCAA notice errors are prejudicial to the claimant. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that the VCAA notice requirements in regard to new and material evidence claims require VA to send a specific notice letter to the claimant that: (1) notifies him or her of the evidence and information necessary to reopen the claim (i.e., describes what is meant by new and material evidence); (2) identifies what specific evidence is required to substantiate the element or elements needed for service connection that were found insufficient in the prior denial on the merits; and (3) provides general VCAA notice for the underlying service connection claim. A January 2010 letter provided by the RO provided information consistent with those requirements as to the claim to reopen the claims for service connection for right and left ankle disorders. However, VA has since determined that such requirements are inconsistent with the subsequent Federal Circuit decisions in Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009) ("Vazquez-Flores II') and Wilson v. Mansfield, 506 F.3d 1055, 1059 (Fed. Cir. 2007). See VAOPGCREC 6-2014 (2014). The Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a January 2010 letter (as to the claims for the right and left ankles) and a June 2013 letter (as to the right toe and left wrist) were sent to the Veteran prior to the respective, initial unfavorable decisions issued as to each claim. The letters advised the Veteran of the evidence and information necessary to substantiate his service connection claims, as well as his and VA's respective responsibilities in obtaining such evidence and information. The notice letters also provided notice of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Furthermore, the Veteran has been represented by an attorney in this matter. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006) (holding that an appellant's representation by counsel "is a factor that must be considered when determining whether that appellant has been prejudiced by any notice error"). The Veteran and his attorney have not indicated there is any outstanding evidence relevant to this claim. Indeed, in a June 2015 correspondence, the Veteran's attorney indicated that it would not be submitting a Brief or additional evidence for the Board to consider. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and VA has complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). VA has a duty to assist the Veteran in developing his claim, which includes assisting the Veteran in obtaining any outstanding records of identified VA or private medical treatment relevant to his claim, and affording him an examination when appropriate. Relevant to the duty to assist, the AOJ obtained and considered the Veteran's service treatment records as well as post-service records from VA and the Social Security Administration (SSA), which included private treatment records. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. The Board again notes that in July 2015, the Veteran's attorney indicated that it would not be submitting any additional evidence to the Board. The attorney also did not indicate that further evidence should be obtained. Therefore, the Board finds that VA has met its duty to assist the Veteran in obtaining relevant records. The duty to assist under 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4) is triggered when it is necessary to obtain an examination to make a decision in the case. Factors to consider in determining whether an examination is necessary include whether there is evidence of a current disability, and whether there is evidence that the disability may be associated with the appellant's military service or another service-connected disability but there is not sufficient medical evidence to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board does not find that examination is necessary to decide the claim for service connection for an alleged disorder of the right, fifth toe. The claims file contains no competent evidence of a current diagnosis, or complaints of, such a disorder. Therefore, the Board finds that a VA examination and/or opinion is not necessary to decide the claim. As to the left wrist arthritis claim, the Veteran underwent a VA examination in September 2013. The VA examiners provided specific findings referable to the Veteran's alleged arthritis sufficient for the Board to adjudicate such claim. The Board finds that such VA examination and accompanying opinion is adequate to decide the issue as it was predicated on an interview with the Veteran; a review of the record, to include her available service treatment records; and a physical examination. The opinion proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. 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"). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion regarding the issue decided herein has been met. As to the claim to reopen the claim for service connection for a right and left ankle disorders, the Veteran has not received a VA examination. The VCAA and its implementing regulations include clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who attempts to reopen a previously denied claim. See 38 C.F.R. § 3.159(c)(1),(2) and (3). Such assistance includes obtaining service records, records in the custody of a Federal agency, and private records adequately identified by the claimant, but, prior to reopening a claim, there is no duty to obtain a VA medical examination or opinion. However, the Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Factors to consider in determining whether an examination is necessary include whether there is evidence of a current disability, and whether there is evidence that the disability may be associated with the appellant's military service or another service-connected disability but there is not sufficient medical evidence to make a decision on the claim. See McLendon, supra. In the present case, the Veteran does not have currently diagnosed disorders of the right or left ankle. Therefore, the Board finds that VA examinations and/or opinions are not necessary to decide these claims. As indicated previously, the Veteran was afforded the opportunity to testify before a DRO in June 2012 prior to the promulgation of the rating decision as to the right and left ankle claims. 38 C.F.R. 3.103(c)(2) requires that the DRO who chairs a hearing fulfill two duties to comply with (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the DRO essentially elicited testimony necessary to determine the nature of the Veteran's claims, to include determining that the Veteran was still pursuing a claim regarding the ankles, though he had not filed a notice of disagreement as to such claims. In addition, the DRO sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Moreover, neither the Veteran nor his representative asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor identified any prejudice in the conduct of the DRO hearing. By contrast, the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for benefits. As such, the Board finds that, the DRO complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Right and Left Ankle Disorder New and Material Evidence Claims The Veteran contends that he has right and left ankle disorders that developed during service (November 1973 to August 1974) and have continued to the present. Service treatment records do not document any complaints of, or treatment for, either ankle. A November 1975 VA X-ray report documents that the Veteran had complained of pain. X-ray findings were negative as to the left knee and both ankles. There was no significant bony abnormality or alteration in the joints. In a July 1978 preliminary report, Dr. J.K. Ross noted the Veteran reported having had a June 14, 1978 on the job accident, from which he injured both ankles getting in and out of a truck. Dr. Ross diagnosed him with left and right ankle sprain. Dr. Ross noted that an X-ray report was negative for any bony injury. Dr. Ross opined that the Veteran's current symptoms were due entirely to the accident and that no previous disease or injury contributed to his disability. A later July 1978 letter, from Dr. A.L. Sarris, documents that the Veteran had been working for the past 6.5 months on a job where he would step on a truck and jump down frequently, with increasing pain in both ankles. The Veteran reported that he had had trouble for a long time, including in service, and had received "shots" from VA with no relief. Dr. Sarris diagnosed the Veteran with bilateral pain in the subtalar joints of both lower extremities and recommended surgery. A September 1978 VA medical record documents that the Veteran complained of bilateral ankle pain, with no history of trauma. In a September 1978 rating decision, the RO denied service connection for bilateral ankle pain, noting that there was no record of a bilateral ankle condition during service and that the record showed that the Veteran developed ankle sprain in 1978, from getting in and out of trucks. In March 1980, the Board denied service connection for residuals of bilateral ankle sprain, finding no chronic bilateral ankle disability during active duty. That decision is final. 38 U.S.C.A. § 7104(b); 38 C.F.R. § 20.1100. In July 1987, the Veteran filed to reopen his claim for service connection for a disability of both ankles. He reported his belief that his ankle problems were due to wearing boots in service. September 1987 VA medical records documented that the Veteran complained of radiation, but that his VA medical provider found a full range of motion, with no significant swelling or ligament instability, only mild tenderness, a normal gait, and that he was neurovascularly intact. X-rays were negative. In a September 1987 rating decision, the RO denied reopening the Veteran's claim. In January 1988, the Veteran filed a notice of disagreement (NOD) with that decision and the RO issued a February 1988 statement of the case (SOC). The Veteran did not file a substantive appeal to perfect his appeal. As such, the September 1987 denial became final. 38 U.S.C.A. § 7105(b); 38 C.F.R. §§ 20.200, 20.202, and 20.302(a). In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as; the AOJ has not received any new and material evidence regarding any claim within the year following the September 1987 decision. The AOJ received no evidence pertaining to this claim prior to the expiration of the appeal period. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Thereafter, the RO received the appellant's petition to reopen the claim in December 2009. Generally, a claim that has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Since the December 2009 claim, the RO received medical records without any indication of complaints of, or treatment for, the ankle during the current appeal period from December 2009. At most, prior to the current appeal period, VA medical records documented occasional treatment for ankle complaints. For example, a February 1990 X-ray report also documents normal ankles, with the examiner noting that the ankles were unchanged since 1987. A May 1992 VA orthopedic evaluation showed a normal foot and ankle examination. A May 1992 VA medical record documented that the Veteran complained of instability and frequent sprain. Orthopedic evaluation found that no operation was necessary and May 1992 MRI of the bilateral lower extremities were normal. More recent SSA and VA medical records do not document any complaints of, or treatment for, either ankle. In June 2012, the Veteran also provided lay testimony during a RO hearing, which was repetitive of his previous reports of bilateral ankle pain since service and after service. The Board concludes that the Veteran's statements regarding pain of and treatment for the ankles, are duplicative of the evidence of record at the time of the September 1987 rating decision and, therefore, is not new. On the other hand, the medical evidence received since the September 1987 rating decision is new, as it has not been previously considered. However, the evidence is not material because it does not show that the Veteran has a diagnosed disorder of either ankle or that such disorders are related to service. Therefore, the additional evidence received, while new, is not material since it does not relate to an unestablished fact necessary to substantiate each respective service connection claim, and does not raise a reasonable possibility of substantiating any of those claims. Accordingly, the Board finds that the claim for service connection for right and left ankle disorders may not be reopened. III. Right, Fifth Toe Disorder and Left Wrist Arthritis Service Connection Claims The Veteran contends that he developed a right, fifth toe disorder from a toe fracture and left wrist arthritis, from a wrist fracture, in service. The Board notes that the Veteran is already service-connected for residuals of a left little toe fracture and a left wrist fracture. (September 1978 rating decision). The Board has also referred claims for increased ratings for such disabilities in the Introduction portion of this decision. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. 1110, 1131 (West 2014); 38 C.F.R. 3.303(a) (2015). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In some cases, service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service treatment records do not document any complaints of, or treatment for, a right, fifth toe disorder. Service treatment records do note a left wrist fracture X-ray report, from June 1974. Following the August 1974 separation from service, the record is silent as to any complaints of, or treatment for, the right 5th (little) toe or left wrist for years following service. A May 1990 VA bone scan showed that the Veteran's entire skeleton had been studied due to his complaints of polyarthralgia. The report, however, indicated that there was no abnormal joint activity in the Veteran with a clinical history of polyarthralgia with negative serology. A May 1992 VA X-ray of the feet was normal. A May 1992 VA lower extremity MRI, from the knee to feet, was normal. A September 1999 letter from Dr. E.G. Agosta documents that the Veteran reported falling on his left hand at work and received a diagnosis of left ulnar neuropathy across the elbow. However, the Veteran subsequently underwent surgery for these left upper extremity problems, to include for the shoulder and cubital tunnel release and ulnar nerve transposition. (October 1999 letter from J. Daniels, DO). Even then, the medical evidence did not document any complaints of, or treatment for, the left wrist specifically. In February 2004, the Veteran had a right hammertoe deformity of the 5th digit. The Veteran however underwent surgery for this matter. Post-operative X-rays showed excellent alignment, and other follow-up records showed that the Veteran was doing fine. (Podiatrist M.N. Jackson records, February, March and April 2004). Also, prior to the current claim, VA medical records documented no abnormal joint activity, as well as, numerous instances where the Veteran denied having arthralgia or myalgia. (June 1990, October 2010, February 2011 and June 2011 VA medical records). In August 2012, the Veteran filed the current claims. Since that time, none of the VA or SSA records document any current diagnoses of a right, fifth toe disorder or left wrist arthritis. Rather, a December 2013 VA medical record documents that the Veteran denied having joint swelling or pain. In September 2013, the Veteran underwent a VA examination for his left wrist. Following X-ray examination of the Veteran, the examiner found that "arthritis not secondary [to fracture] as it does not exist". The only evidence of record supportive of the Veteran's claims is his lay evidence as to pain since service. While the Veteran is competent to describe symptoms, which he is able to perceive through use of his senses, it is well established that lay persons without medical training, such as the Veteran, are not competent to opine on matters requiring medical expertise, such as the diagnosis of a left wrist or right fifth toe condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, medical testing and expertise is required to determine the diagnosis of symptoms associated with such disorders as well as to determine the etiology of any such conditions. The Veteran has not been shown to have medical expertise to render a diagnosis or etiology of a right, fifth toe disorder or left wrist arthritis. In sum, to the extent the Veteran is offering his own opinion of a current diagnosis of a right, fifth toe disorder or of left wrist arthritis, or indeed, as to a disorder that he believes is causing his symptoms of left wrist pain - other than his already service-connected residuals of left wrist fracture, the Board finds that such opinions are beyond the scope of his competency. Here, the Veteran seeks service connection for a right, fifth toe disorder and left wrist arthritis. Therefore, if there is competent and credible evidence establishing the current existence of such a condition, the Veteran has presented a valid claim. See U.S.C.A §1110; see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C.A. § 1131 requires existence of present disability for VA compensation purposes); see also Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). None of the medical evidence during the current appeal period reflects a diagnosis of a right, fifth toe disorder or left wrist arthritis, or indeed any left wrist disorder other than the already service-connected residuals of left wrist fracture. The Board acknowledges the Veteran's contention concerning "problems" he experiences in his right fifth toe and left wrist; however, discomfort or pain alone is not a disability for which VA compensation is payable in the absence of an underlying diagnosis. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001); McClain v, Nicholson, 21 Vet. App. 319, 321 (2007). Accordingly, the weight of the medical evidence is against in the finding of a presently existing diagnosis of a right, fifth toe disorder or left wrist arthritis. In the absence of competent evidence of a right, fifth toe disorder or left wrist arthritis during the period of the claim, service connection is not warranted on any basis for such claims and must be denied. In reaching these conclusions, 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 claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER New and material evidence has not been received, the claim to reopen the service connection claim for a right ankle disorder is denied. New and material evidence has not been received, the claim to reopen the service connection claim for a left ankle disorder is denied. Service connection for a right, fifth toe disorder is denied. Service connection for a left wrist disorder other than the service-connected residuals of left wrist fracture, to include arthritis, is denied. REMAND A September 2010 rating decision denied service connection for disorders of the right and left legs and ankles. In March 2011, the Veteran filed a notice of disagreement (NOD) as to the legs only. During his June 2012 DRO hearing, the Veteran indicated that he was still actually pursuing service connection for his right and left ankles, which have been decided above. However, after reporting that he was still pursuing service connection for ankle disorder, the Veteran then continued to provide hearing testimony as to the right and left leg disorders. While the RO subsequently issued a statement of the case (SOC) in July 2012, that SOC only discussed the ankle issues. However, the Veteran filed a NOD as to the leg issues and continued to pursue that claim during his DRO hearing and has not withdrawn such issues. The AOJ has not issued a SOC that addresses the leg issues. Therefore, the Board must remand those issues for the issuance of a proper SOC. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: The AOJ should provide the Veteran with a SOC regarding the issues of entitlement to service connection for right and left leg disorders. Please advise the Veteran of the time period in which to perfect his appeal. If the Veteran perfects his appeal in a timely fashion, then return the case to the Board for its review, as appropriate. The appellant has the right to submit additional evidence and argument on the matter or 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 action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs