Citation Nr: 1544213 Decision Date: 10/16/15 Archive Date: 10/21/15 DOCKET NO. 10-42 734 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a disorder of the upper and lower back, including claimed bilateral lower extremity sciatica. 2. Entitlement to service connection for a bilateral hip disorder. 3. Entitlement to service connection for a bilateral knee disorder. 4. Entitlement to service connection for a bilateral foot fungus. 5. Entitlement to a higher (compensable) initial disability rating for right femoral medial condyle stress fracture residuals. 6. Entitlement to an initial disability rating (or evaluation) in excess of 10 percent for left femur stress fracture residuals. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant (Veteran) ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from June 1999 to August 2000 and from March 2003 to September 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2009, December 2009, June 2010, and September 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In July 2015, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference Board hearing. A transcript of the hearing is of record. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the U.S. Court of Appeals of Veterans Claims (Court) held that a request for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), whether expressly raised by a veteran or reasonably raised by the record, is part of an initial or increased rating appeal. After review of the record, the Board finds that the issue of entitlement to a TDIU is not part of the current appeal because the Veteran has been employed full-time throughout the rating period. See, e.g., April 2010 VA examination report and the July 2015 letter from the Veteran's supervisor. The issues of entitlement to an initial disability rating in excess of 10 percent for left femur stress fracture residuals is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran had active service in the Southwest Asia Theater of operations during the Persian Gulf War. 2. The Veteran does not have a current diagnosed disability manifested by upper and lower back pain with radiation into the lower extremities. 3. The Veteran has an undiagnosed illness characterized by upper and lower back pain with radiation into the lower extremities to a compensable degree. 4. The Veteran's left knee and left hip symptoms are part of the service-connected left femur stress fracture residuals and are rated as part of the service-connected left femur stress fracture residuals. 5. The Veteran's right knee and right hip symptoms are rated as part of the service-connected right femoral medial condyle stress fracture residuals and are already contemplated in the 20 percent rating to be assigned for the service-connected right femoral medial condyle stress fracture residuals. 6. The Veteran had recurrent symptoms of tinea pedis during service. 7. The Veteran has had recurrent symptoms of tinea pedis since service. 8. The Veteran is currently diagnosed with tinea pedis. 9. Throughout the rating period, the right femoral stress fracture was manifested by painful, limited motion with right hip flexion limited to no more than 60 degrees, right thigh extension limited to no more than 0 degrees, right hip abduction limited to no more than 20 degrees, right hip adduction limited to no more than 20 degrees, right hip external rotation limited to no more than 20 degrees, right knee flexion limited to no more than 100 degrees, right knee extension limited to no more than 5 degrees, right knee pain, weakness, stiffness, and fatigability, mild swelling and effusion of the right knee, and mild right knee crepitation. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for presumptive service connection for a qualifying chronic disability characterized by upper and lower back pain with radiation into the lower extremities are met. 38 U.S.C.A. §§ 1101, 1110, 1117, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2015). 2. As the Veteran does not have a disability manifested by bilateral hip symptoms, apart from the service-connected left femur stress fracture and right femoral medial condyle stress fracture, the criteria for service connection for a bilateral hip 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, 4.14 (2015). 3. As the Veteran does not have a disability manifested by bilateral knee symptoms, apart from the service-connected left femur stress fracture and right femoral medial condyle stress fracture, the criteria for service connection for a bilateral knee 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, 4.14 (2015). 4. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for bilateral tinea pedis are met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102 , 3.159, 3.303 (2015). 5. Resolving reasonable doubt in the Veteran's favor, the criteria for an initial 20 percent rating, and no higher, for right femoral medial condyle stress fracture residuals are met for the entire rating period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5299-5255 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice should be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Collectively, in the August 2008 and January 2010 notice letters sent prior to the initial denial of the service connection claims decided herein, the RO advised the Veteran of what the evidence must show to establish entitlement to service-connected compensation benefits, described the types of information and evidence that the Veteran needed to submit to substantiate the claims, and explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of the claims. The RO further informed the Veteran how VA determines the disability rating and effective date once service connection is established. In consideration of the foregoing, the Board finds that the VCAA notice requirements were fully satisfied prior to the initial denial of the claims, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. Regarding the initial rating appeal for right femoral medial condyle stress fracture residuals, the Veteran is challenging the initial rating assigned following the grant of service connection. The Court has held that, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has in fact been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. See Dingess v. Nicholson, 19 Vet. App. 473, 490-91; Dunlap v. Nicholson, 21 Vet. App. 112, 117 (2007). Furthermore, under 38 C.F.R. § 3.159(b)(3)(i), there is no duty to provide the Veteran with VCAA notice upon receipt of a Notice of Disagreement, such as in this case. For these reasons, the Board finds that no further notice, beyond that afforded in the context of the claim for service connection, is needed under the VCAA. Regarding VA's duty to assist in claims development, the Board notes that the Veteran's service records are incomplete in this case. When service records are unavailable through no fault of a veteran, VA has a heightened duty to assist, as well as an obligation to explain its findings and conclusions, and to carefully consider the benefit-of-the-doubt rule. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). As will be explained below, the Board finds that the heightened duty to assist has been met. The RO has made reasonable efforts to obtain relevant records and evidence in this case. The information and evidence that has been associated with the record include the available service treatment records, post-service private treatment records, and the Veteran's written assertions, and personal hearing testimony. In August 2008, the RO requested the service treatment records for active service periods from June 1999 to August 2000 and from March 2003 to September 2003. The Records Management Center (RMC) responded that all available service treatment records had previously been furnished in July 2008, and no further records could be found. Available service treatment records include the July 1998 Reserve service enlistment examination report, the June 2000 Reserve service medical history and examination reports, and pre-deployment and post-deployment health assessment questionnaires dated in 2003. A formal finding on the unavailability of complete service treatment records for the active service period from March 2003 to September 2003 was made. See January 2010 memorandum. The duty to notify the Veteran of the unavailability of records was satisfied by way of October 2008 and January 2010 letters. 38 C.F.R. § 3.159(e) (2015). Further attempts to obtain the records would be futile. Also, the RO provided the Veteran with VA examinations in January 2009 and April 2010. Collectively, the medical examination reports include all relevant findings and medical opinions needed to evaluate fairly the appeals adjudicated herein. The VA examiners considered an accurate history of the claimed disabilities as reported by the Veteran, the Veteran's subjective complaints as it related to the current symptomatology and its effects on daily life, and performed a thorough examination of the Veteran. The April 2010 VA examiner also reviewed the record; therefore, the VA medical examiners had adequate facts and data regarding the history and condition of the claimed disabilities when providing the medical opinions. For these reasons, the Board finds that the medical examination reports are adequate, and there is no need for further medical examination or medical opinion. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a hearing (1) fully explain the issues and (2) suggest the submission of evidence that may have been overlooked. At the Board hearing, the VLJ identified the issues on appeal and explained the three evidentiary elements needed to establish service connection. During the hearing, the VLJ posed several questions in order to elicit testimony regarding the alleged in-service injury or disease, and past and current symptoms, diagnoses, and treatment for the claimed knee and hip disorders, as well as past and current symptoms, treatment, and functional impairment for the service-connected right femoral stress fracture. No missing evidence was identified at the hearing. In consideration of the foregoing, the Board finds that the duties under 38 C.F.R. § 3.103(c)(2) were met. Neither the Veteran nor the representative has made the RO or the Board aware of any other evidence relevant to the appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal, and no further development is required. Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Veteran is currently diagnosed with tinea pedis, which is not a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the Board finds that the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are not applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As explained below, the bilateral hip and knee symptoms are part of the symptom complex for the already service-connected left femur stress fracture and right medial condyle stress fracture with osteochondritis. Service connection may also be granted on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 21, 2016, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1). In claims based on qualifying chronic disability, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Notably, laypersons are competent to report objective signs of illness. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location, or symptomatology are similar. See 38 C.F.R. § 3.317(a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). A "qualifying chronic disability" for purposes of 38 U.S.C.A. § 1117 is a chronic disability resulting from (1) an undiagnosed illness, (2) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (3), any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C.A. § 1117(d) warrants a presumption of service connection. 38 U.S.C.A. § 1117(a)(2); 38 C.F.R. § 3.317(a), (c). As an initial matter, the diseases for which the Secretary has established a presumption under (3) are all infectious in nature. The Veteran does not allege, and the record does not suggest, that he has any of the listed diseases. "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317(a)(2), (3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). Effective July 13, 2010, VA amended its adjudication regulations governing presumptions for certain Persian Gulf War veterans. Such revisions amend § 3.317(a)(2)(i)(B) to clarify that chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome are examples of medically unexplained chronic multisymptom illnesses and are not an exclusive list of such illnesses. Additionally, the amendment removes § 3.317(a)(2)(i)(B)(4) which reserves to the Secretary the authority to determine whether additional illnesses are "medically unexplained chronic multisymptom illnesses" as defined in paragraph (a)(2)(ii) so that VA adjudicators will have the authority to determine on a case-by-case basis whether additional diseases meet the criteria of paragraph (a)(2)(ii). These amendments are applicable to claims pending before VA on October 7, 2010, as well as claims filed with or remanded to VA after that date. See 75 Fed. Reg. 61,997 (Oct. 7, 2010). Compensation under 38 U.S.C.A. § 1117 shall not be paid if: (1) there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; (2) there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) there is affirmative evidence that the illness is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). Service Connection for an Upper or Lower Back Disorder and Claimed Sciatica The Veteran contends that he has an upper and lower back disorder caused by the physical rigors of military life, to include wearing heavy body armor and protective combat gear, jumping in and out of five to seven ton trucks three or four feet off of the ground, performing manual labor, carrying heavy ammunition, and performing combat fitness tests and obstacle courses, during active service. See Board hearing transcript, page 5. He seeks service connection on this basis. After review of the lay and medical evidence of record, the Board finds that the evidence shows no underlying, diagnosed disability to account for the upper or lower back pain with radiation into the lower extremities. At the April 2010 VA examination, the VA examiner noted that x-rays of the thoracic and lumbar spine were unremarkable with the exception of very slight dextrorotatory scoliosis and physical examination of the thoracolumbar spine was normal. Based on interview and examination of the Veteran and review of the record, the April 2010 VA examiner opined that there was insufficient clinical evidence to support a diagnosis of a lower or upper back condition or bilateral lower extremity sciatica. Although the Veteran's private medical provider wrote, in a July 2015 letter, that the Veteran had osteoarthritis of the spine and sciatica, the Veteran admitted in a subsequent July 2015 letter that the diagnoses were based on clinical symptoms and not x-ray evidence of osteoarthritis. See 38 C.F.R. § 4.71a, DC 5003 (rating degenerative arthritis "established by x-ray findings"). In the absence of x-ray evidence of arthritis, the purported diagnosis of osteoarthritis of the spine is of no probative value. Furthermore, although the Veteran's private medical provider also noted a diagnosis of sciatica, the evidence shows that straight leg raises have consistently been negative. There is no other evidence to show that the bilateral leg pain is attributable to any compression or irritation of the sciatic nerve; therefore, because the purported diagnosis of sciatica is based on the Veteran's reported symptoms that are believed to be consistent with sciatica, and are not based on objective evidence of sciatic nerve involvement causing pain in the lower extremities, it is of no probative value. See April 2010 VA examination report; see also October 2010 private treatment record (noting that straight leg raise elicited "back pain only"). Back and lower leg pain is a symptom of a disability, and is not considered a disability in and of itself. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). As a result, service connection is not warranted on a direct basis. Because the Veteran has service in Kuwait from April 2003 to June 2003, he has qualifying service as a Persian Gulf Veteran; therefore, the Board has also considered presumptive service connection for a disorder manifested by upper and lower back pain with radiation into the lower extremities, under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317. Under 38 U.S.C.A. § 1117(a)(2) and 38 C.F.R. § 3.317(a)(2)(i), "Qualifying chronic disability" includes: (a) an undiagnosed illness; (b) a "medically unexplained chronic multisymptom illness" (such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders) that is defined by a cluster of signs or symptoms; or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. After review of the lay and medical evidence of record, the Board finds that the evidence is in equipoise as to whether presumptive service connection for an undiagnosed illness characterized by upper and lower back pain with radiation into the lower extremities is warranted. As a lay person, the Veteran is competent to report upper and lower back pain with radiation into the lower extremities, and the account is deemed credible, particularly because the Veteran has sought medical treatment for the symptoms during the course of the appeal. See, e.g., October 2010 private treatment record. The complaints of upper and lower back pain with radiation into the lower extremities have been evaluated and are not attributed to a medical diagnosis; therefore, there is evidence of an undiagnosed illness manifested by upper and lower back pain with radiation into the lower extremities of record. The Board next finds that the undiagnosed illness manifested by upper and lower back pain with radiation into the lower extremities has manifested to a compensable degree when rated by analogy to a spine disability under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. In regard to the method of rating based on the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height under the General Rating Formula for Diseases and Injuries of the Spine. Note (1) for the General Rating Formula for Diseases and Injuries of the Spine reads that any associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. In this case, the evidence shows that, during a flare-up of back pain, thoracolumbar spine flexion is limited to 80 degrees; therefore, the criteria for a 10 percent rating under General Rating Formula for Diseases and Injuries of the Spine are met. The Board further finds that the pain radiating into the lower extremities has manifested to a compensable degree when rated by analogy to sciatic neuritis under the criteria at 38 C.F.R. § 4.71a, Diagnostic Code 8620. Under DC 8620, disability ratings of 10, 20, 40, and 60 are warranted, respectively, for mild, moderate, moderately severe, and severe (with marked muscular atrophy) neuritis of the sciatic nerve. In this case, the evidence shows intermittent pain in the bilateral lower extremities and some mild loss of reflexes in the lower extremities without muscle or sensory deficits. See April 2010 VA examination report (noting a 3 out of 4 for reflexes); see October 2010 private treatment record. Because the symptoms described above are largely sensory (i.e., intermittent pain) with only some decrease in reflex noted in the lower extremities, the Board finds that the criteria for a 10 percent rating for mild sciatic neuritis are approximated. In consideration thereof, and resolving reasonable doubt in favor of the Veteran, the Board finds that presumptive service connection for an undiagnosed illness characterized by upper and lower back pain with radiation into the lower extremities is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection Analysis for Bilateral Hip and Bilateral Knee Disorders The Veteran contends that he has bilateral hip and knee disorders caused by wearing heavy body armor and combat protective gear during active service or are otherwise due to the bilateral femoral stress fractures sustained during service. See Board hearing transcript, page 5. He seeks service connection on this basis. After review of the record, the Board finds that the symptoms of bilateral hip and knee pain were manifested during the Veteran's first period of active service. The Reserve service treatment records show treatment for symptoms of bilateral knee pain from June 1999 to August 1999, and bilateral hip pain from August 1999 to October 1999. After initially assessing patellofemoral pain syndrome and then iliotibial band syndrome, service medical providers ultimately attributed the knee and hip symptoms to a diagnosis of bilateral femoral stress fractures with left-sided midshaft fracture and right lesser trochanteric stress fracture. See October 1999 Reserve service treatment entry; see also April 2010 VA examination report (noting that the only mention of knee pain in service treatment records was for femur fracture). In a March 2009 rating decision, the RO granted service connection for left femur stress fracture with a 10 percent disability rating effective from July 29, 2008. In a December 2009 rating decision, the RO granted service connection for right femoral medial condyle stress fracture with osteochondritis dissecans with a 0 percent disability rating effective from July 29, 2008. The rating criteria for hip and thigh disabilities contemplate varying degrees (i.e., slight, moderate, or marked) of knee and/or hip disability due to impairment of the femur; therefore, the Board finds that the bilateral hip and knee symptoms are part of the already service-connected left femur stress fracture residuals and right medial condyle stress fracture residuals with osteochondritis and will be addressed in the context of rating those disabilities. See DC 5255 (rating impairment of the femur at 10, 20, and 30 percent for malunion of the femur with slight, moderate, or marked knee or hip disability, respectively). The weight of the evidence further shows that the Veteran does not suffer from any knee or hip disability apart from the service-connected left femur stress fracture and right femoral medial condyle stress fracture to which the symptoms of bilateral hip and knee symptoms may be attributed. The January 2009 and April 2010 VA examination reports showed no diagnosis for a hip or knee disability. Although a private medical provider wrote, in July 2015 letters, that the Veteran has a current diagnosis of osteoarthritis involving the hips and knees, the purported osteoarthritis diagnosis was based on the Veteran's reported symptoms and physical examination of the hips and knees and was not also based on x-ray findings of osteoarthritis. Without x-ray evidence of arthritis, the diagnosis of osteoarthritis of the hips and knees is not credible and is of no probative value. See 38 C.F.R. § 4.71a, DC 5003 (rating degenerative arthritis (hypertrophic or osteoarthritis) "established by x-ray findings" on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved, or assigning a 10 percent rating for noncompensable limitation of motion with evidence of swelling, muscle spasm, or painful motion, or rating based on x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups); see also January 2009 and April 2010 VA examination reports (noting normal x-rays for the knees and hips); October 2010 private treatment record (noting only that bilateral knee pain was "consistent with early osteoarthritis"); July 2015 letter from the Veteran (acknowledging that x-ray evidence of osteoarthritis had not been demonstrated, and that the clinical symptoms were the bases for the osteoarthritis diagnosis). To the extent that the Veteran's private medical provider opined, in the July 2015 letters, that the bilateral knee and hip symptoms were related to the bilateral femoral stress fractures sustained during service, the Board finds that the medical opinion is consistent with the finding above that the bilateral hip and knee symptoms are part of the already service-connected left femur stress fracture and right medial condyle stress fracture with osteochondritis. Thus, even if there was a credible bilateral knee and hip osteoarthritis diagnosis of record, no separate rating would be warranted for any knee or hip osteoarthritis because to award a separate rating based on the same symptoms contemplated in the rating for the service-connected left femur stress fracture and the right medial condyle stress fracture with osteochondritis would violate the prohibition against pyramiding. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261 (1994) (the critical element is that none of the symptomatology for any condition is duplicative of or overlapping with the symptomatology of the other condition). For these reasons, the Board finds that the preponderance of the evidence is against service connection for a bilateral hip disorder and a bilateral knee disorder; therefore, the appeals must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102. Service Connection Analysis for Bilateral Foot Fungus The Veteran contends that the current bilateral foot fungus, which has been diagnosed as tinea pedis, began during active service and recurred thereafter. He seeks service connection on this basis. After review of all the lay and medical evidence of record, the Board finds that the evidence is at least in equipoise on the question of whether symptoms of tinea pedis first manifested during the second period of active service from March 2003 to September 2003. Available service treatment records show that, in March 2003 (i.e., approximately two weeks after service entrance), the Veteran reported a skin condition involving the left foot. Later, in July 2003, the Veteran received in-service treatment for a bilateral foot fungus affecting the soles of the feet, which was assessed as tinea pedis. There is no complaint, report, diagnosis, or treatment for a skin disability affecting the foot during the Veteran's first period of active service from June 1999 to August 2000. The Board notes that there is some evidence of record that suggests that tinea pedis existed prior to the second period of active service (i.e., tinea pedis had its onset between the first and second active service periods), including some statements made by the Veteran during the course of the appeal; however, the service treatment records for the second period of active service, which are incomplete, include no service entrance examination report for the second active duty service period of record, and it is presumed that an entrance examination is provided prior to all periods of active duty service. Thus, the Veteran is presumed sound at service entrance for the second period of active service for the claimed bilateral foot fungus. See Quirin v. Shinseki, 22 Vet. App. 390, n.5 (2009) (citing Lee v. Brown, 10 Vet. App. 336, 339 (1997) (holding that the presumption of soundness applies even when the record of a veteran's entrance examination has been lost or destroyed while in VA custody)). Furthermore, the Veteran expressed some uncertainty, in March 2003, as to the diagnosis for the skin condition involving the foot (i.e., noting "eczema(?)" of the left foot), and reported, in June 2003, that he had taken prescribed medication (i.e., Grifulvin) within the last 12 months for a fungal skin infection. Because the Veteran has stated that the medication was prescribed toward the beginning of the second period of active service for treatment of the foot fungus, and service treatment records are incomplete, the presumption of soundness is not rebutted by clear and unmistakable evidence that the skin disorder existed prior to service entrance for the second period of service. See 38 U.S.C.A. § 1111 (West 2014); 38 C.F.R. § 3.304(b) (2015); see Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) (directing that, where the presumption of sound condition at service entrance is not rebutted by clear and unmistakable evidence both that disorder preexisted service and that it was not aggravated by service, the claim becomes one of direct service incurrence); VAOPGCPREC 3-03; see also June 2015 letter from the Veteran. In consideration thereof, and resolving reasonable doubt in favor of the Veteran, the Board finds that the tinea pedis symptoms were manifested during the second period of active service. The Board next finds that the evidence is in equipoise on the question of whether tinea pedis symptoms have recurred since service and have been attributed to a current diagnosis of tinea pedis. When the Veteran sought dermatological treatment for tinea pedis in August 2006, he reported that the rash on the feet had occurred for many years and came and went (i.e., recurred). Statements made for treatment purposes are particularly trustworthy because the patient has an incentive to report accurately the history of symptoms in order to receive proper care; therefore, the August 2006 statement, which is consistent with the more recent account of recurrent tinea pedis symptoms since service, is credible and of significant probative value. More recently, the recurrent bilateral foot fungal rash and its associated symptoms of itching, burning, flaking, and peeling skin has been attributed to a current diagnosis of bilateral tinea pedis by competent medical professionals. See, e.g., May 2011 VA examination report; see also December 2011 private treatment record (noting a diagnosis of chronic tinea pedis); Horowitz v. Brown, 5 Vet. App. 217, 221-22 (1993) (lay statements are competent to report in-service and post-service symptoms such as dizziness, loss of balance, hearing trouble, stumbling and falling, and tinnitus that were later diagnosed as Meniere's disease). In consideration of the foregoing, and resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for bilateral tinea pedis under 3.303(d) have been met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Disability Rating Legal Criteria Disability ratings are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. The factors involved in evaluating, and rating disabilities of the joints include weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination (impaired ability to execute skilled movements smoothly); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); or pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. In DeLuca v. Brown, 8 Vet. App. 202, 205 (1995), the Court held that, for disabilities rated on the basis of limitation of motion, VA was required to apply the provisions of 38 C.F.R. §§ 4.40, and 4.45, pertaining to functional impairment. The Court instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, or incoordination. Such inquiry was not to be limited to muscles or nerves. These determinations were, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. Under 38 C.F.R. § 4.59, with any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to the affected joints. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. Although pain may cause a functional loss, pain itself does not constitute functional loss. Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Court has held that the provisions of 38 C.F.R. § 4.59 have bearing even with respect to joint disorders that do not involve arthritis. In Burton v. Shinseki, 25 Vet. App. 1 (2011), the Court determined that the above regulation provides for a minimum 10 percent rating for painful, unstable, or malaligned joints, which involve residuals of injuries in non-arthritis contexts. In determining the disability rating, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Governing regulations include 38 C.F.R. §§ 4.1 and 4.2, which require the evaluation of the complete medical history of a veteran's condition. Where there is a question as to which of two ratings shall be applied, the higher rating 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. An appeal from the initial assignment of a disability rating requires consideration of the entire time period involved and contemplates staged ratings where warranted. Fenderson v. West, 12 Vet. App. 119 (1999). Initial Rating Analysis for Right Femoral Medial Condyle Stress Fracture Residuals For the entire initial rating period (i.e., from July 29, 2008), the service-connected right femur stress fracture residuals have been rated at 0 percent (i.e., noncompensable) under 38 C.F.R. § 4.71a, hyphenated DC 5299-5255 for an unlisted disease rated by analogy to impairment of the femur. DC 5255 provides for assignment of ratings for impairment of the femur. Malunion of the femur with slight knee or hip disability warrants a 10 percent rating, malunion of the femur with moderate knee or hip disability warrants a 20 percent rating, and malunion of the femur with marked knee or hip disability warrants a 30 percent rating. The terms "slight," "moderate," and "marked" are not defined in the VA Schedule. Higher ratings are warranted when there is evidence of fracture of the surgical neck of the femur with false joint or fracture of the shaft or anatomic neck of the femur with nonunion. 38 C.F.R. § 4.71a, DC 5255. Although the schedular criteria do not specifically outline any criteria for a noncompensable (0 percent) rating, a zero percent rating is assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. Rather than applying a mechanical formula, it is incumbent upon the Board to arrive at an equitable and just decision after having evaluated the evidence. 38 C.F.R. § 4.6 (2015). Under VA regulations, normal hip flexion is considered to be 0 to 125 degrees, and normal hip abduction is considered to be 0 to 45 degrees. Normal range of motion for the knee is from 140 degrees flexion to 0 degrees extension. 38 C.F.R. § 4.71, Plate II (2015). After review of all the lay and medical evidence of record, the Board finds that the evidence is in equipoise on the question of whether the disability picture associated with the right femoral stress fracture closely approximates, and is analogous to, malunion of the femur with moderate disability of the knee and hip so that the criteria for a 20 percent rating are met for the entire rating period. Throughout the rating period, the evidence shows that the right femoral stress fracture was manifested by painful, limited motion with right hip flexion limited to no more than 60 degrees, right thigh extension limited to no more than 0 degrees, right hip abduction limited to no more than 20 degrees, right hip adduction limited to no more than 20 degrees, right hip external rotation limited to no more than 20 degrees, right knee flexion limited to no more than 100 degrees, right knee extension limited to no more than 5 degrees, right knee pain, weakness, stiffness, and fatigability, mild swelling and effusion of the right knee, and mild right knee crepitation. See January 2009 and April 2010 VA examination reports; October 2010 private treatment record. The symptoms and level of impairment associated with the right femoral stress fracture approximates malunion of the femur with moderate right hip and knee disability so that the criteria for a 20 percent rating under DC 5255 are met for the entire initial rating period. A rating in excess of 20 percent under DC 5255 for the right femoral stress fracture is not warranted. The evidence shows negative right hip x-rays, normal right hip strength and alignment, and no right hip ankylosis, flail joint, false joint, loose motion, or use of a brace; therefore, no marked right hip disability (or worse right hip disability) is demonstrated. Also, because the evidence shows negative right knee x-rays, normal right knee alignment, and no right knee ankylosis, instability or subluxation, or nonunion or malunion of the fibula and tibia, no marked right knee disability (or worse knee disability) is demonstrated. Although there is some painful, limited motion for the right hip and right knee, neither the hip nor the knee warrants more than a 10 percent rating after consideration of Deluca factors because the demonstrated limitation of right thigh flexion, right thigh extension, and impairment of the right thigh is noncompensable under DCs 5251, 5252, and 5253, and the limitation of right knee flexion is noncompensable under DC 5260, and the limitation of right knee extension is noncompensable under DC 5261. Taking into account the diagnostic codes pertaining to limitation of motion of the hip and thigh and knee and leg for guidance purposes only, the Board finds that the combined right hip and knee disability amounts to no more than a moderate level of impairment based on painful, limited range of motion to a noncompensable degree for both the right hip and right knee so that a 20 percent rating under hyphenated DC 5299-5255 is warranted. 38 C.F.R. §§ 4.3, 4.7. Extraschedular Referral Analysis The Board has further considered whether the initial rating appeal warrants referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321. Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, it must be determined whether the disability picture is such that the schedular criteria are inadequate, i.e., whether there are manifestations or impairment that are not encompassed by the schedular criteria. If those criteria are not inadequate, the analysis does not need to proceed any further. In this case, the Board does not find any functional impairment or symptoms that are not already encompassed by the 20 percent schedular rating for the right femoral stress fracture residuals under hyphenated DC 5299-5255. The schedular rating criteria for hip and thigh disabilities provide for disability ratings contemplate limited range of motion; the presence of a flail joint; the presence of ankylosis; and the presence of malunion or nonunion of the femur, to include consideration of the severity of resultant knee or hip disability. Range of motion findings include consideration of Deluca factors such as pain, weakness, flare-ups, and fatigability. See 38 C.F.R. §§ 4.40, 4.45, 4.59. The right femoral stress fracture residuals are rated by analogy to impairment of the femur. For the entire initial rating period from July 29, 2008, the right femoral stress fracture residuals were manifested by painful, limited motion with right hip flexion limited to no more than 60 degrees, right thigh extension limited to no more than 0 degrees, right hip abduction limited to no more than 20 degrees, right hip adduction limited to no more than 20 degrees, right hip external rotation limited to no more than 20 degrees, right knee flexion limited to no more than 100 degrees, right knee extension limited to no more than 5 degrees, right knee pain, weakness, stiffness, and fatigability, mild swelling and effusion of the right knee, and mild right knee crepitation. The 20 percent rating under DC 5299-5255 for the entire rating period fully considers the Veteran's right hip and right knee pain with decreased range of motion for the right hip/thigh and right knee and any functional impairment shown to be related thereto. During the rating period, the Veteran has reported right hip and knee pain with prolonged walking and running. These complaints are part of, or like or similar to, the factors in the schedular rating criteria that recognize limited ranges of motion and joint function, including limitations due to orthopedic disability factors such as pain on movement, weakened movement, fatigability, and localized tenderness/pain that are incorporated as part of the schedular rating criteria via 38 C.F.R. §§ 4.40, 4.45, and 4.59. See DeLuca. These symptoms and functional impairment are contemplated in the 20 percent schedular rating under hyphenated DC 5299-5255, including by incorporation of orthopedic rating factors that impair joint function; therefore, the symptoms and/or manifestations and functional impairment related to the right femoral stress fracture residuals are fully contemplated and adequately compensated by the 20 percent schedular disability rating under hyphenated DC 5299-5255 for the entire rating period. See also 38 C.F.R. § 4.20 (2015) (providing that schedular disability ratings by analogy are appropriate for rating). For these reasons, the Board finds that the schedular rating criteria are adequate to rate the right femur stress fracture disability, and referral for consideration of extraschedular rating is not necessary. Furthermore, according to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b)] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when there is "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities create such an exceptional circumstance to render the schedular rating criteria inadequate. There is neither allegation nor indication that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. For these reasons, the Board finds that the schedular rating criteria are adequate, and no extraschedular referral is warranted in this case. 38 C.F.R. § 3.321(b)(1). ORDER Presumptive service connection for a qualifying chronic disability of undiagnosed illness characterized by upper and lower back pain with radiation into the lower extremities is granted. Service connection for a bilateral hip disorder is denied. Service connection for a bilateral knee disorder is denied. Service connection for bilateral tinea pedis is granted. An initial disability rating of 20 percent for right femoral medial condyle stress fracture residuals for the entire rating period is granted. REMAND Initial Disability Rating for Left Femur Stress Fracture Residuals The issue of entitlement to an initial rating in excess of 10 percent for the service-connected left femur stress fracture residuals is remanded for issuance of a Statement of the Case (SOC). In March 2009, the RO, in pertinent part, granted service connection for left femur stress fracture residuals with a 10 percent rating effective from July 29, 2008. The Veteran was notified of the decision the same month. In October 2009, the Veteran submitted a Notice of Disagreement with respect to the March 2009 rating decision. Although the Veteran did not specifically contend that he was entitled to a higher initial rating for the left femur stress fracture residuals, he did state that he had chronic pain of the left hip, which he believed was attributable to a separate diagnosis of tendonitis; however, the evidence shows that the left hip pain is a symptom of, and part of, the service-connected left femur stress fracture residuals. In a separate letter attached to the October 2009 Notice of Disagreement, the Veteran stated that he had residual left hip and left knee problems related to the left femur stress fracture during service. Because the RO only considered left hip symptoms when assigning the 10 percent rating and did not consider left knee symptoms, the Board finds that the October 2009 Notice of Disagreement included disagreement with the portion of the RO's decision that assigned a 10 percent rating for the left femur stress fracture residuals, and the Veteran seeks a higher initial rating. As the October 2009 correspondence was received by the RO within the appeal period, the NOD is timely. 38 U.S.C.A. § 7105. No SOC has been issued following the October 2009 NOD regarding the initial rating assigned for the left femur stress fracture residuals. When a veteran has filed timely a NOD, and no SOC has been issued, as is the case here, the Board must remand, not refer, the issue to the AOJ for issuance of a SOC. See Manlincon v. West, 12 Vet. App. 238 (1999) (holding that Board should remand for issuance of SOC when NOD has been timely filed); 38 U.S.C.A. § 7105(d)(1). Thereafter, the Veteran must submit a timely substantive appeal in order for the issue to be perfected for appeal to the Board. 38 U.S.C.A. § 7105. Accordingly, the issue of entitlement to an initial rating in excess of 10 percent for left femur stress fracture residuals is REMANDED for the following action: Send the Veteran a SOC that addresses the issue of entitlement to an initial rating in excess of 10 percent for the left femur stress fracture residuals. Given the evidence of left hip and left knee symptoms associated with the left femur stress fracture residuals, consider rating the left femur stress fracture disability by analogy to impairment of the femur (DC 5255). Inform the Veteran and the representative that, in order to perfect an appeal of this issue to the Board, a timely and adequate Substantive Appeal must be filed following the issuance of the statement of the case. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal 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). ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs