Citation Nr: 1636583 Decision Date: 09/19/16 Archive Date: 09/27/16 DOCKET NO. 10-00 377A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for varicose veins of the right lower extremity, including as due to a service-connected residual stress fracture of the distal tibia of the right lower extremity. 2. Entitlement to service connection for a neck disability, including as due to service-connected bilateral hearing loss. 3. Entitlement to service connection for degenerative joint disease of the right shoulder, including as due to service-connected bilateral hearing loss. 4. Entitlement to an initial compensable rating for a residual stress fracture of the distal tibia of the right lower extremity. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from June 1981 to June 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted the Veteran's claim of service connection for a residual stress fracture of distal tibia of the right lower extremity, assigning a zero percent (non-compensable) rating effective August 31, 2009, and denied the Veteran's claims of service connection for varicose veins of the right lower extremity, including as due to service-connected residual stress fracture of distal tibia of the right lower extremity, and for a neck disability (which was characterized as degenerative disc disease, degenerative joint disease, and chronic cervical strain with radiculopathy), and for degenerative joint disease of the right shoulder, each including as due to service-connected bilateral hearing loss. The Veteran disagreed with this decision in October 2010. He perfected a timely appeal in April 2012. Having reviewed the record evidence, the Board finds that the issues on appeal should be characterized as stated on the title page of this decision. In March 2015, the Board remanded this matter to the Agency of Original Jurisdiction (AOJ) for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. The Board directed that the AOJ attempt to obtain the Veteran's updated treatment records and schedule him for appropriate examinations to determine the nature and etiology of his varicose veins of the right lower extremity, neck disability, and degenerative joint disease of the right shoulder, and to determine the current nature and severity of his service-connected residual stress fracture of the distal tibia of the right lower extremity. The requested records subsequently were associated with the claims file. And the requested examinations occurred in November 2015 with additional opinion evidence obtained in December 2015. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board notes that, in Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim cannot be considered separate and apart from an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Instead, the Court held that a TDIU claim is an attempt to obtain an appropriate rating for a service-connected disability. The Court also found in Rice that, when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. As the Board found in its March 2015 remand, the record in this case indicates that the Veteran has not asserted that he is not employable by reason of his service-connected disabilities. The Veteran also has not submitted evidence subsequent to the Board's March 2015 remand which reasonably raises a TDIU claim. Accordingly, and as the Board previously concluded in March 2015, Rice is inapplicable. This appeal was processed using the Virtual VA (VVA) and Virtual Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. FINDINGS OF FACT 1. The record evidence shows that the Veteran's varicose veins of the right lower extremity are not related to active service or any incident of service and were not caused by his service-connected residual stress fracture of the distal tibia of the right lower extremity. 2. The record evidence shows that the Veteran does not experience any current neck disability or degenerative joint disease of the right shoulder which is attributable to active service or any incident of service; neither of these claimed disabilities was caused or aggravated by service-connected bilateral hearing loss. 3. The record evidence shows that the Veteran's service-connected residual stress fracture of the distal tibia of the right lower extremity is not manifested by any knee or ankle disability. CONCLUSIONS OF LAW 1. Varicose veins of the right lower extremity were not incurred in or aggravated by active service, including as due to a service-connected residual stress fracture of the right lower extremity. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2015). 2. A neck disability was not incurred in or aggravated by active service, including as due to service-connected bilateral hearing loss, nor may arthritis of the neck be presumed to have been incurred in service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2015). 3. Degenerative joint disease of the right shoulder was not incurred in or aggravated by active service, including as due to service-connected bilateral hearing loss, nor may it be presumed to have been incurred in service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2015). 4. The criteria for an initial compensable rating for a residual stress fracture of the distal tibia of the right lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5299-5262 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his or her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In letters issued in September 2009 and in August 2015, VA notified the Veteran of the information and evidence needed to substantiate and complete his claims, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). These letters informed the Veteran to submit medical evidence showing that his claimed disabilities are related to active service. The Veteran also was informed of when and where to send the evidence. After consideration of the contents of these letters, the Board finds that VA has satisfied substantially the requirement that the Veteran be advised to submit any additional information in support of his claims. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran's higher initial rating claim for a residual stress fracture of the distal tibia of the right lower extremity is a "downstream" element of the AOJ's grant of service connection for this disability in the currently appealed rating decision. For such downstream issues, notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159 is not required in cases where such notice was afforded for the originating issue of service connection. See VAOPGCPREC 8-2003 (Dec. 22, 2003). Courts have held that once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d. 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). As will be explained below in greater detail, the evidence does not support granting service connection for varicose veins of the right lower extremity, a neck disability, or for degenerative joint disease of the right shoulder. Because the Veteran was fully informed of the evidence needed to substantiate these claims, any failure of the AOJ to notify the Veteran under the VCAA cannot be considered prejudicial. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Veteran also has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). With respect to the timing of the notice, the Board points out that the Court has held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a Veteran before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. See Pelegrini, 18 Vet. App. at 112. Here, all relevant notice was issued prior to the currently appealed rating decisions; thus, this notice was timely. And any defect in the timing or content of the notice provided to the Veteran and his service representative has not affected the fairness of the adjudication. See Mayfield, 444 F.3d at 1328. The Board is aware of the decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) in which the Court held that, for an increased-compensation claim, section § 5103(a) requires, at a minimum, VA notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Relying on the informal guidance from VA's Office of General Counsel (OGC) and a VA Fast Letter issued in June 2008 (Fast Letter 08-16; June 2, 2008), the Board finds that Vazquez-Flores is not applicable to the Veteran's higher initial rating claim for a residual stress fracture of the distal tibia of the right lower extremity. According to OGC, because this appeal arises from an initial rating decision, VCAA notice obligations are satisfied fully once service connection has been granted. Any further notice and assistance requirements are covered by 38 U.S.C. §§ 5104(a), 7105(d)(1), and 5103A as part of the appeals process, upon the filing of a timely NOD with respect to the initial rating or effective date assigned following the grant of service connection. In Dingess, the Court held that, in cases 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 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, 19 Vet. App. at 490-91. To the extent that Dingess requires more extensive notice as to potential downstream issues such as disability rating and effective date, because the currently appealed rating decision was fully favorable to the Veteran on the issue of service connection for a residual stress fracture of the distal tibia of the right lower extremity, and because the Veteran was fully informed of the evidence needed to substantiate this claim, the Board finds no prejudice to the Veteran in proceeding with the present decision. See also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the AOJ and the Board, although he declined to do so. Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C.A. § 5103A(c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA also must seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). It appears that all known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise. The Veteran's electronic paperless claims files in VVA and in VBMS have been reviewed. The Veteran also does not contend, and the evidence does not show, that he is in receipt of Social Security Administration (SSA) disability benefits such that a remand to obtain his SSA records is required. The Veteran has been provided with VA examinations which address the contended causal relationship between the claimed disabilities and active service. He also has been provided with VA examinations which address the current nature and severity of his service-connected residual stress fracture of the distal tibia of the right lower extremity. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board recognizes here that, in an August 2016 Informal Hearing Presentation (IHP), the Veteran's service representative argued that all of the VA examinations and medical opinion evidence obtained by the AOJ in November and December 2015 in response to the Board's March 2015 remand were incomplete and/or inadequate for VA adjudication purposes. In advancing an argument concerning the adequacy of the medical evidence obtained by the AOJ in November and December 2015, the Veteran appears to be raising a general challenge to the professional competence of the VA examiners who provided the opinions or conducted the examinations. Both the Court and the Federal Circuit have held, however, that the Board is entitled to presume the competence of a VA examiner and specific challenges to a VA examiner's competency must be raised by the appellant to overcome this presumption. See Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009) and Bastien v. Shinseki, 599 F.3d 1301 (Fed. Cir. 2010); see also Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (citing Hilkert v. West, 12 Vet. App. 145, 151 (1999)). The Court held in Cox that "the Board is entitled to assume the competence of a VA examiner." Id. at 569 (citations omitted). Absent evidence or argument which called in to question a VA examiner's professional competence, the Court concluded in Cox that it is not error for the Board to presume that a VA examiner is competent. Id. See also Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (explicitly extending the presumption of competence discussed in Cox and Rizzo to VA examiners). The Federal Circuit in Rizzo expressly adopted the Cox standard regarding the presumption of competence of VA examiners absent specific argument or evidence concerning professional competence advanced by an appellant. See Rizzo, 580 F.3d at 1290-91. In adopting the presumption of competence of VA examiners announced by the Court in Cox, the Federal Circuit specifically held in Rizzo that: Absent some challenge to the expertise of a VA expert, this court perceives no statutory or other requirement that VA must present affirmative evidence of a physician's qualifications in every case a precondition for the Board's reliance upon that physician's opinion. Indeed, where as here, the Veteran does not challenge a VA medical expert's competence or qualifications before the Board, this court holds that VA need not affirmatively establish that expert's competency. Id. Neither the Veteran nor his service representative has raised a specific challenge to the professional medical competence or qualifications of the VA examiners who provided the medical evidence obtained by the AOJ in November and December 2015. Recent Federal Circuit precedent also suggests that VA may rely upon the medical evidence obtained by the AOJ in November and December 2015 in adjudicating the Veteran's currently appealed claims. In Bastien, an appellant challenged the qualifications of a VA physician to provide a medical expert opinion on the grounds that this physician lacked objectivity and/or independence because he was a VA employee. See Bastien, 599 F.3d at 1306-7. Citing Rizzo, the Federal Circuit in Bastien rejected the appellant's challenge to the qualifications of a VA physician and held instead that the law and regulations provide that VA "is explicitly and implicitly authorized to use its own employees as experts." See Bastien, 599 F.3d at 1307 (citing 38 U.S.C. §§ 5103A(d), 7109(a); 38 C.F.R. § 20.901). The Federal Circuit also held in Bastien that an appellant challenging the expertise of a VA physician must "set forth the specific reasons...that the expert is not qualified to give an opinion." Id. That has not happened in this case. Neither the Veteran nor his service representative has identified or submitted any evidence or argument that the VA examiners who conducted the November and December 2015 examinations or provided the December 2015 opinions were not competent or lacked the professional medical training necessary to review the claims file, including the Veteran's service treatment records and post-service VA and private treatment records, and provide competent opinions concerning the contended etiological relationships between the Veteran's claimed disabilities and active service. There is no requirement, as the Court held in Cox and as the Federal Circuit held in Rizzo, that VA establish the competence of the any VA examiner prior to relying on the medical evidence obtained by the AOJ in November and December 2015 in adjudicating his currently appealed claims. The Federal Circuit noted in Rizzo that there was "no law or precedent suggesting that the Board must have first established [a VA examiner's] qualifications on the record before assigning his opinion probative value." See Rizzo, 580 F.3d at 1291-92. "VA benefits from a presumption that it has properly chosen a person qualified to provide a medical opinion in a particular case." Parks v. Shinseki, 716 F.3d 581, 585 (Fed. Cir. 2013) (citing Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011)); Wise v. Shinseki, 26 Vet. App. 517, 524-27 (2014). It is presumed that VA follows a regular process that ordinarily results in the selection of a competent medical professional. Parks, 716 F.3d at 585 ("Viewed correctly, the presumption [of competence] is not about the person or a job title; it is about the process."). Thus, absent clear evidence sufficient to rebut the presumption of competence, the fact that a person was chosen by VA to provide an opinion generally assures that person's competence to provide the requested opinion. Sickels, 643 F.3d at 1366. There has been no showing or even an allegation that the VA examiners who provided the medical evidence obtained by the AOJ in November and December 2015 were not competent or did not report accurately what they found in their review of the claims file. The Board also finds that the medical opinions obtained in November and December 2015 are adequate for evaluation purposes because they addressed fully all of the Veteran's contentions regarding his claimed disabilities. The Board recognizes here that, in its March 2015 remand, it requested that the VA examiner conducting the examinations for a neck disability and degenerative joint disease of the right shoulder address certain evidence in their review and opinions. The Veteran's service representative subsequently asserted in the August 2016 IHP that these examinations were inadequate because the examiners had not addressed the evidence listed in the Board's March 2015 remand. The Board finds that, because the VA examiners who conducted the Veteran's neck and shoulder examinations in November 2015 found no current neck disability or degenerative joint disease of the right shoulder which could be attributed to active service, the issue of whether they addressed certain evidence in their examination reports is moot. The Board also finds that, contrary to the service representative's argument in the August 2016 IHP, the VA examiner who examined the Veteran for varicose veins of the right lower extremity in December 2015 noted that he had reviewed the evidence listed in the Board's March 2015 remand (lay statements) and this review did not change his opinions. See also 38 C.F.R. § 4.2 (2015). With respect to the Veteran's higher initial rating claim for a residual stress fracture of the distal tibia of the right lower extremity, the Board notes that the Court recently required that "certain range of motion testing be conducted whenever possible in cases of joint disabilities" under 38 C.F.R. § 4.59. The Court also stated that, "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59." See Correia v. McDonald, 28 Vet. App. 158 (2016). The final sentence of § 4.59 requires that joints "should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint" (in this case, the Veteran's left leg). See also 38 C.F.R. § 4.59 (2015). The Board notes that the November 2015 VA knee and lower leg conditions Disability Benefits Questionnaire (DBQ) contained physical examination results for the Veteran's service-connected residual stress fracture of the distal tibia of the right lower extremity (which is evaluated under DC 5299-5262). The Board also notes that, although this examination report does not contain range of motion testing results for the Veteran's (undamaged) left leg, it nevertheless satisfies Correia because the VA examiner specifically found that the Veteran's service-connected residual stress fracture of the distal tibia of the right lower extremity resulted in no right knee or right ankle disability (as is required for an initial compensable rating under DC 5299-5262). See 38 C.F.R. § 4.71a, DC 5299-5262 (2015). Because the Veteran's service-connected residual stress fracture of the distal tibia of the right lower extremity results in no compensable disability of the right knee or right ankle, it is not necessary (or possible) to provide the range of motion of the opposite undamaged joint. Thus, the Board finds that 38 C.F.R. § 4.59 and Correia do not require this issue to be remanded again for another VA examination. The Board further finds that a remand to obtain another opinion or examination would serve no purpose but to delay further the adjudication of the Veteran's claims with no benefit flowing to him. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (holding that strict adherence to requirements in 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 the VA with no benefit flowing to the Veteran) and Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). Given the foregoing, the Board finds the examinations of record are adequate for rating purposes and additional examination is not necessary regarding the claims adjudicated in this decision. See also 38 C.F.R. §§ 3.326, 3.327, 4.2. In summary, VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA. Service Connection Claims The Veteran contends that he incurred varicose veins of the right lower extremity, a neck disability, and degenerative joint disease of the right shoulder during active service. He alternatively contends that his service-connected stress fracture of the distal tibia of the right lower extremity caused or aggravated (permanently worsened) to his varicose veins of the right lower extremity. He also alternatively contends that his service-connected bilateral hearing loss caused or aggravated (permanently worsened) his neck disability and degenerative joint disease of the right shoulder. Laws and Regulations Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection also may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Establishing service connection generally requires (1) medical evidence of a presently existing disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection also may be established on a secondary basis for: (1) a disability that is proximately due to or the result of a service-connected disease or injury; or, (2) any increase in the severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease or injury. 38 C.F.R. §§ 3.310(a)-(b); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993) (explaining 38 C.F.R. § 3.310(a)); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (explaining 38 C.F.R. § 3.310(b)). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. See Savage, 10 Vet. App. at 495-498. In Walker, the Federal Circuit overruled Savage and limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also Fountain v. McDonald, 27 Vet. App. 258 (2015) (adding tinnitus as an "organic disease of the nervous system" to the list of disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a)). Because varicose veins of the right lower extremity are not recognized explicitly as "chronic" in 38 C.F.R. § 3.309(a), the Board finds that Savage and the theory of continuity of symptomatology in service connection claims is inapplicable to this claim. In contrast, because arthritis is considered a "chronic" disability under 38 C.F.R. § 3.309(a), the theory of continuity of symptomatology remains valid in adjudicating the Veteran's claims of service connection for a neck disability and for degenerative joint disease of the right shoulder only to the extent that these claims include a claim for arthritis. It is VA policy to administer the laws and regulations governing disability claims under a broad interpretation and consistent with the facts shown in every case. When a reasonable doubt arises regarding service origin, the degree of disability, or any other point, after careful consideration of all procurable and assembled data, such doubt will be resolved in favor of the claimant. Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not prove or disprove the claim satisfactorily. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. Factual Background and Analysis The Board finds that the preponderance of the evidence is against granting the Veteran's claim of service connection for varicose veins of the right lower extremity, including as due to a service-connected stress fracture of the distal tibia of the right lower extremity. The Veteran contends that he incurred varicose veins of the right lower extremity during active service or, alternatively, his service-connected residual stress fracture of the distal tibia of the right lower extremity caused or aggravated (permanently worsened) his varicose veins of the right lower extremity. The record evidence does not support his assertions regarding the contended etiological relationship between varicose veins of the right lower extremity and active service, including as due to a service-connected residual stress fracture of the distal tibia of the right lower extremity. It shows instead that, although the Veteran has been diagnosed as having and treated for varicose veins of the right lower extremity since his service separation, they are not related to active service or any incident of service, including as due to a service-connected residual stress fracture of the distal tibia of the right lower extremity. For example, the Veteran's service treatment records show that, at his enlistment physical examination in September 1980, prior to his entry on to active service in June 1981, clinical evaluation of the lower extremities was normal. The Veteran denied all relevant pre-service medical history. Clinical evaluation of the Veteran's lower extremities was unchanged at his separation physical examination in June 1985. The Veteran denied all relevant in-service medical history. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). The post-service evidence also does not support granting service connection for varicose veins of the right lower extremity, including as due to a service-connected residual stress fracture of the distal tibia of the right lower extremity. It shows instead that, although the Veteran has complained of and been treated for varicose veins of the right lower extremity since his service separation, they are not related to active service or any incident of service, including as due to a service-connected residual stress fracture of the distal tibia of the right lower extremity. The Board notes here that, since it previously found the November 2009 VA examination and February 2012 VA medical opinion to be incomplete and inadequate in its March 2015 remand, this evidence was not relied on in adjudicating this claim. The remaining medical evidence of record shows that, on VA artery and vein conditions Disability Benefits Questionnaire (DBQ) in December 2015, the Veteran complained of continuous pain of the right lower extremity since service and varicose veins beginning several years after service separation. The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records. Physical examination showed varicose veins of the right lower extremity with reported symptoms of aching and fatigue in the right leg after prolonged standing or walking which were relieved by the use of compression hosiery. The Veteran stated that he could not be on his feet for too long or his symptoms worsened. The VA examiner opined that it was less likely than not that the Veteran's varicose veins of the right lower extremity were related to active service or any incident of service, including as due to a service-connected residual stress fracture of the distal tibia of the right lower extremity. The rationale for this opinion was, "There is neither evidence in the medical literature, consensus in the medical community, or evidence in this specific case that supports a causal/aggravation relationship between varicose veins and the activities of service." This examiner also stated, "Lay statements noted but do not change the opinion or medical evidence." The diagnosis was varicose veins. Despite the Veteran's assertions to the contrary, the probative record evidence demonstrates that his current varicose veins of the right lower extremity are not related to active service or any incident of service, including as due to a service-connected residual stress fracture of the distal tibia of the right lower extremity. The November 2015 VA examiner's negative nexus opinion concerning the contended etiological relationship between the Veteran's varicose veins of the right lower extremity and active service, including as due to a service-connected residual stress fracture of the distal tibia of the right lower extremity, was fully supported. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The Veteran also has not identified or submitted any evidence, to include a medical nexus, demonstrating his entitlement to service connection for varicose veins of the right lower extremity, including as due to a service-connected residual stress fracture of the distal tibia of the right lower extremity. The Board again acknowledges the arguments presented by the Veteran's service representative in the August 2016 IHP but finds them to be unavailing on the issue of whether the VA artery and vein conditions DBQ in December 2015 adequately considered the Veteran's lay statements in providing a negative nexus opinion concerning the contended etiological relationship between varicose veins of the right lower extremity and active service (as discussed above). In summary, the Board finds that service connection for varicose veins of the right lower extremity, including as due to a service-connected stress fracture of the distal tibia of the right lower extremity, is not warranted. The Board next finds that the preponderance of the evidence is against granting the Veteran's claims of service connection for a neck disability or for degenerative joint disease of the right shoulder, each including as due to service-connected bilateral hearing loss. The Veteran contends that he incurred a neck disability (which he characterized as degenerative disc disease, degenerative joint disease, and chronic cervical strain) and degenerative joint disease of the right shoulder during active service. He alternatively contends that his service-connected bilateral hearing loss caused or aggravated (permanently worsened) his neck disability and degenerative joint disease of the right shoulder because he had to turn his head and right shoulder constantly in order to be able to hear people talking to him. For example, the Veteran's service treatment records show that, at his enlistment physical examination in September 1980, prior to his entry on to active service in June 1981, clinical evaluation of the neck, upper extremities, and spine were normal. The Veteran denied all relevant pre-service medical history. Clinical evaluation was unchanged at his separation physical examination in June 1985. The Veteran denied all relevant in-service medical history. The Board notes again that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan, 451 F.3d at 1337; and Barr, 21 Vet. App. at 303. The post-service record evidence also does not support granting the Veteran's claims of service connection for a neck disability or for degenerative joint disease of the right shoulder, each including as due to service-connected bilateral hearing loss. It shows instead that, although the Veteran continues to complain of constant neck and right shoulder pain, he does not experience any current neck disability or degenerative joint disease of the right shoulder which could be attributed to service. The Board notes in this regard that the presence of a mere symptom (such as neck pain or right shoulder pain) alone, absent evidence of a diagnosed medical pathology or other identifiable underlying malady or condition that causes the symptom, does not qualify as disability for which service connection is available. See generally Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999); vacated in part and remanded on other grounds sub nom., Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). The Board also notes that, since it previously found the November 2009 VA examinations and February 2012 VA medical opinions to be incomplete and inadequate in its March 2015 remand, this evidence was not relied on in adjudicating these claims. The remaining post-service evidence of record shows that, on VA neck (cervical spine) conditions DBQ in November 2015, the Veteran's complaints included constant neck pain "after years of turning his head because of hearing loss." The Veteran denied experiencing any flare-ups due to any of the DeLuca factors. Range of motion testing of the cervical spine was normal with "pain noted on exam but does not result in/cause functional loss." There was no additional limitation of motion on repetitive testing. Physical examination of the cervical spine showed no evidence of pain on weight-bearing or localized tenderness to palpation in the joint/soft tissue of the cervical spine (neck), no muscle spasm or guarding, 5/5 muscle strength, no muscle atrophy, normal deep tendon reflexes and sensation, mild constant pain of the right upper extremity, no ankylosis or neurologic abnormalities, and intervertebral disc syndrome but no episodes which required bed rest prescribed by a physician in the previous 12 months. X-rays showed no traumatic arthritis. The cervical spine condition did not impact the Veteran's ability to work. The VA examiner opined that it was less likely than not that the Veteran's claimed neck condition was caused or aggravated by his service-connected bilateral hearing loss. The rationale for this opinion was that there was no support in the medical literature "to support this nexus" and "it is much more likely" that his claimed neck disability was age related "or due to an interval event following discharge from service over 30 years ago." There was no cervical spine (neck) condition diagnosed. On VA shoulder and arm conditions DBQ in November 2015, the Veteran's complaints included constant right shoulder pain with shooting pain in to the right arm. The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records. The Veteran denied experiencing any flare-ups or limitation with repetitive use or due to any of the DeLuca factors. He also denied experiencing any functional loss or impairment of the right shoulder. Although pain was noted on range of motion testing of the right shoulder, the VA examiner stated that it "does not result in/cause functional loss." There also was no additional limitation of motion on repetitive testing. Physical examination of the right shoulder showed no evidence of pain on weight-bearing, no localized tenderness to palpation in the joint or soft tissues, no objective evidence of crepitus, 5/5 muscle strength, no muscle atrophy, no ankylosis, flail shoulder, false flail shoulder, fibrous union of the humerus, or malunion of the humerus. X-rays of the right shoulder showed no traumatic arthritis. The Veteran's claimed right shoulder condition did not impact his ability to perform any type of occupational task. The VA examiner opined that it was less likely than not that the Veteran's claimed right shoulder condition was caused or aggravated by his service-connected bilateral hearing loss. The rationale for this opinion was that there was no support in the medical literature "to support this nexus" and "it is much more likely" that his claimed right shoulder disability was age related "or due to an interval event following discharge from service over 30 years ago." There was no shoulder or arm condition diagnosed. Despite the Veteran's assertions to the contrary, the probative record evidence demonstrates that his claimed neck disability and degenerative joint disease of the right shoulder are not related to active service or any incident of service, each including as due to service-connected bilateral hearing loss. The November 2015 VA examiner's negative nexus opinions concerning the contended etiological relationship between the Veteran's claimed neck disability, his claimed right shoulder disability, and his service-connected bilateral hearing loss were fully supported. See Stefl, 21 Vet. App. at 124. Although the November 2015 VA examiner did not address whether the Veteran's claimed neck and right shoulder disabilities were related to active service on a direct service connection basis, the Board notes in this regard that a service connection claim must be accompanied by evidence which establishes that the claimant currently has a disability. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection is not warranted in the absence of proof of current disability. The Board has considered whether the Veteran experienced a neck disability or degenerative joint disease of the right shoulder at any time during the pendency of this appeal. Service connection may be granted if there is a disability at some point during the claim even if it later resolves or becomes asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, although the Veteran has complained consistently of experiencing neck and right shoulder pain throughout the appeal period, the probative medical evidence (November 2015 VA examinations) shows no evidence of current neck disability or degenerative joint disease of the right shoulder which could be attributed to active service or any incident of service, each including as due to service-connected bilateral hearing loss. In summary, the Board finds that service connection for a neck disability and for degenerative joint disease of the right shoulder, each including as due to service-connected bilateral hearing loss, is not warranted. Higher Initial Rating Claim The Veteran finally contends that his service-connected residual stress fracture of the distal tibia of the right lower extremity is more disabling than currently (and initially) evaluated. He specifically contends that his right leg is extremely painful as a result of worsening symptomatology which he attributes to his service-connected residual stress fracture of the distal tibia of the right lower extremity. Laws and Regulations In general, disability evaluations are assigned by applying a schedule of ratings that represent, as far as can be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria that must be met for specific ratings. The regulations require that, in evaluating a given disability, the disability be viewed in relation to its whole recorded history. 38 C.F.R. § 4.2; see Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, as in this case, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). In Johnson, the Federal Circuit held that 38 C.F.R. § 3.321 required consideration of whether a Veteran is entitled to referral to the Director, Compensation Service, for consideration of the assignment of an extraschedular rating based on the impact of his or her service-connected disabilities, individually or collectively, on the Veteran's "average earning capacity impairment" due to such factors as marked interference with employment or frequent periods of hospitalization. See Johnson v. McDonald, 762 F.3d 1362 (2014); see also 38 C.F.R. § 3.321(b)(1). As is explained below in greater detail, following a review of the record evidence, the Board concludes that the symptomatology experienced by the Veteran as a result of his service-connected disabilities, individually or collectively, does not merit referral to the Director, Compensation Service, for consideration of the assignment of an extraschedular rating(s). In other words, the record evidence does not indicate that these service-connected disabilities, individually or collectively, show marked interference with employment or frequent periods of hospitalization or otherwise indicate that the symptomatology associated with them is not contemplated within the relevant rating criteria found in the Rating Schedule. VA recently proposed amending 38 C.F.R. § 3.321(b)(1) to limit extraschedular consideration based on the impact of an individual service-connected disability. This proposed regulation is consistent with VA's longstanding practice of interpreting this regulation to provide an extraschedular rating for a single disability and not the combined effect of two or more disabilities. The proposed changes will clarify the regulation so that an extraschedular rating is available only for an individual service-connected disability but not for the combined effect of more than one service-connected disability. See 81 Fed. Reg. 23228-23232 (Apr. 20, 2016) to be codified at 38 C.F.R. § 3.321(b)(1). Until this proposed regulation becomes final, however, the requirement of extraschedular consideration for a Veteran's service-connected disabilities, individually or collectively, set out by the Federal Circuit in Johnson remains applicable. The Veteran's service-connected residual stress fracture of the distal tibia of the right lower extremity currently is evaluated as zero percent disabling (non-compensable) by analogy to 38 C.F.R. § 4.71a, DC 5299-5262 (other orthopedic disability-impairment of tibia and fibula). See 38 C.F.R. § 4.71a, DC 5299-5262 (2015). A minimum 10 percent rating is assigned under DC 5262 for malunion of the tibia and fibula with slight knee or ankle disability. A 20 percent rating is assigned for malunion of the tibia and fibula with moderate knee or ankle disability. A 30 percent rating is assigned for malunion of the tibia and fibular with marked knee or ankle disability. A maximum 40 percent rating is assigned for non-union of the tibia and fibular with loss motion requiring a brace. Id. Factual Background and Analysis The Board finds that the preponderance of the evidence is against granting the Veteran's claim for an initial compensable rating for a residual stress fracture of the distal tibia of the right lower extremity. Despite the Veteran's assertions to the contrary, the record evidence does not demonstrate that he experiences at least slight knee or ankle disability (i.e., a 10 percent rating under DC 5262) as a result of his service-connected residual stress fracture of the distal tibia of the right lower extremity such that an initial compensable rating is warranted for this disability at any time during the appeal period. For example, the Veteran's service treatment records show that, on outpatient treatment in January 1983, he complained of right tibia pain and increased swelling after running. His pain was located over the lower anterior right tibia. X-rays showed a stress fracture on the posterior surface of the right tibia. The Veteran was advised not to do running for 3 weeks. The post-service evidence shows that, on VA bones examination in January 2010, the Veteran complained of increased right leg pain and stiffness which "interferes with his walking and trying to keep fit." The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records. His pain was located from his right knee down to his right ankle. The Veteran denied experiencing any flare-ups. Physical examination showed no evidence of leg shortening, no abnormal bones or joints, a normal gait, no evidence of abnormal weight-bearing in the feet, an ability to stand for 1 hour, no functional limitation on walking, and no evidence of genu recurvatum, constitutional signs of bone disease, or malunion of the os calcis or astralgus. X-rays of the right tibia showed no evidence of old fractures. The Veteran was employed full-time as a police officer where he had worked for 20 years and had lost zero time from work in the previous 12 months. The diagnosis was stress fracture, right distal tibia, with residuals. On VA knee and lower leg conditions DBQ in November 2015, the VA examiner stated that the Veteran "no longer has issues specific to" his service-connected residual stress fracture of the distal tibia of the right lower extremity. "He has generalized pain in the whole right leg. He does not wear a brace or use an assistive device. It does not cause him right knee or ankle pain." The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records. The Veteran denied experiencing any flare-ups of knee or lower leg pain or functional loss or impairment. Range of motion testing showed a full range of motion (to 130 degrees of flexion and full extension) on the right knee which the VA examiner noted was normal for the Veteran due to his "large legs." Although the Veteran experienced pain on flexion on range of motion testing, it did not cause functional loss. There was no additional limitation of motion on repetitive testing due to any of the DeLuca factors. Physical examination showed no evidence of pain on weight-bearing, no evidence of localized tenderness to palpation in the joint or soft tissue, 5/5 muscle strength, objective evidence of crepitus, no ankylosis, and no joint instability or shin splints. X-rays showed no traumatic arthritis. The Veteran's residual stress fracture of the distal tibia of the right lower extremity did not impact his ability to perform any type of occupational task. The diagnosis was right tibia fracture in 1981. The record evidence (in this case, VA examinations in January 2010 and in November 2015) indicates that the Veteran does not experience any current knee or ankle disability as a result of his service-connected residual stress fracture of the distal tibia of the right lower extremity. The Board finds it highly significant that, at his most recent VA examination in November 2015, the Veteran himself stated that he "no longer has issues specific to" his service-connected residual stress fracture of the distal tibia of the right lower extremity. The Veteran also reported that, although he experienced "generalized pain in the whole right leg," he had no right knee or right ankle pain as a result of this service-connected disability. The Board notes in this regard that slight knee or ankle disability is required for a minimum compensable 10 percent rating under DC 5262. See 38 C.F.R. § 4.71a, DC 5262 (2015). The Veteran also has not identified or submitted any evidence, to include a medical nexus, demonstrating his entitlement to an initial compensable rating for a service-connected residual stress fracture of the distal tibia of the right lower extremity. Thus, the Board finds that the criteria for an initial compensable rating for a residual stress fracture of the distal tibia of the right lower extremity have not been met. Extraschedular The Board must consider whether the Veteran is entitled to consideration for referral for the assignment of an extraschedular rating for his service-connected residual stress fracture of the distal tibia of the right lower extremity. 38 C.F.R. § 3.321; Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the Veteran or reasonably raised by the record). An extraschedular analysis is not required in every case. In fact, in Yancy, the Court noted that when 38 C.F.R. § 3.321(b)(1) is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board, the Board is not required to discuss whether referral is warranted." See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016), citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007). Similarly, the Court stated "that the Board is required to address whether referral for extraschedular consideration is warranted for a Veteran's disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant's service-connected disabilities." See Yancy, 27 Vet. App. at 495; see also Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). In this case, neither the Veteran nor his service representative has argued that he is entitled to extraschedular consideration for his service-connected residual stress fracture of the distal tibia of the right lower extremity. The Board also finds that the issue of whether the Veteran is entitled to referral for extraschedular consideration for his service-connected residual stress fracture of the distal tibia of the right lower extremity is not reasonably raised by a review of the record. As discussed above, the record evidence shows that the Veteran does not experience at least slight knee or ankle disability as a result of his service-connected residual stress fracture of the distal tibia of the right lower extremity such that an initial rating is warranted for this disability. In other words, the zero percent (non-compensable) scheduler evaluation currently (and initially) assigned for the Veteran's service-connected residual stress fracture of the distal tibia of the right lower extremity is supported by the medical evidence demonstrating the non-compensable symptomatology attributable to this disability. Further, although the Veteran has complained of experiencing generalized pain in the right leg during the appeal period which he attributes to his service-connected residual stress fracture of the distal tibia of the right lower extremity, the medical evidence shows that this pain does not affect his right knee or right ankle and does not support his assertions of an etiological link between his right leg pain and his service-connected residual stress fracture of the distal tibia of the right lower extremity. Given the foregoing, the Board finds that no further discussion of referral for extraschedular consideration is required. ORDER Entitlement to service connection for varicose veins of the right lower extremity, including as due to a service-connected residual stress fracture of the distal tibia of the right lower extremity, is denied. Entitlement to service connection for a neck disability, including as due to service-connected bilateral hearing loss, is denied. Entitlement to service connection for degenerative joint disease of the right shoulder, including as due to service-connected bilateral hearing loss, is denied. Entitlement to an initial compensable rating for a residual stress fracture of the distal tibia of the right lower extremity is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs