Citation Nr: 1802524 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 10-40 827 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an increased rating for a lumbar spine disability, currently evaluated as 40 percent disabling. 2. Entitlement to an increased rating for a right shoulder disability, currently evaluated as 30 percent disabling. 3. Entitlement to a compensable rating for sinusitis. 4. Entitlement to an initial compensable rating for a right ankle disability. 5. Entitlement to service connection coronary artery disease (CAD) 6. Entitlement to service connection for a right knee disability. 7. Entitlement to service connection for vitreous hemorrhage of the left eye. 8. Entitlement to a total disability rating based on individual unemployability, due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. Bassett, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1977 to April 1995. This case is before the Board of Veterans' Appeals (Board) on appeal from August 2008, November 2009, and September 2010, rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In February 2012, the Veteran testified at a Travel Board hearing at the RO before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. In July 2013 and July 2014, the Board remanded the case to the RO for further development and adjudicative action. There are multiple appeals currently before the Board that arose at different times. As such, the appeals have different docket dates. For efficiency, the Board will address all appeals over which it has jurisdiction. See Ramsey v. Nicholson, 20 Vet. App. 16, 34 (2006) (holding that 38 U.S.C. § 7107 is not an exclusive set of rules by which the Board must consider and decide cases, but rather was intended "to set broad guidelines for the general order of processing appeals at the Board to ensure fairness, efficiency, and timeliness in consideration and decision of appeals"). The issue of entitlement to service connection for adjustment disorder with depressed mood (also claimed as major depressive disorder and depression), to include as secondary to service connected disabilities, has not yet been certified to the Board, and the Board will therefore not exercise jurisdiction over this claim at this time. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to an increased rating for a right shoulder disability and a compensable rating for sinusitis, entitlement to service connection for vitreous hemorrhage of the left eye, and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's lumbar spine disability has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine or entire spine, or intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 2. Since the effective date of service connection, the Veteran's right ankle injury has been manifested by moderate limitation of motion, pain, and flare ups impairing the Veteran's ability to walk and stand, but not by marked limitation of motion. 3. Resolving reasonable doubt in the Veteran's favor, the evidence is at least in equipoise as to whether the Veteran's coronary artery disease is etiologically related to his service. 4. The Veteran has currently diagnosed right knee disabilities, right knee joint osteoarthritis and chondrocalcinosis. 5. Symptoms of a right knee disability were not chronic in service, were not continuous since service, and were not shown to a compensable degree within one year of service. 6. The Veteran's right knee joint osteoarthritis and chondrocalcinosis first manifested many years after the Veteran's service and the preponderance of the evidence is against a finding they are causally or etiologically related to active military service. CONCLUSIONS OF LAW 1. For the entire period on appeal, the criteria for a rating in excess of 40 percent for the service-connected lumbar spine disability are not met. 38 U.S.C. §§ 1155, 5107(b) (2014); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2017). 2. For the entire rating period, the criteria for an initial rating of 10 percent, but no higher, for the Veteran's service-connected right ankle disorder have been met. 38 U.S.C. § 1155 (2014); 38 C.F.R. §§ 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5271 (2017). 3. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for CAD are met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, (2017). 4. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 101, 1110, 1112, 1131, 1133, 5103, 5103A (2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). The Veteran's increased rating claims arise from a disagreement with the initial disability rating that was assigned following the grant of service connection. 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 for the remaining issues, VA's duty to notify was satisfied by letters in May 2008 and September 2009. See 38 U.S.C.A. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed, and that all available evidence necessary for equitable resolution of the issue has been obtained. The Veteran's service and post-service treatment records, VA examination reports, and lay statements have been obtained. VA has associated with the claims folder records of the Veteran's VA outpatient treatment records, and he was afforded VA examinations in December 2009, April 2010, November 2013, and June 2016. Taken together, these VA examinations are adequate because the examiners discussed his medical history, described his disabilities and associated symptoms in detail, and supported all conclusions with analyses based on objective testing and observations. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran has not reported that his lumbar spine disability or right ankle disorder has worsened since the date of the latter examination. A remand is thus not required solely due to the passage of time. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). As the VA examiners obtained information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veteran, and provided an estimation of additional range-of-motion loss during flares, the VA examination provides adequate evidence to resolve the Veteran's claim. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The agency of original jurisdiction (AOJ) substantially complied with the July 2014 remand orders, namely to obtain additional records and schedule the Veteran for additional VA examinations, and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). II. Increased Ratings The Veteran seeks a rating in excess of 40 for the service-connected lumbar spine disability and an initial compensable rating for the service-connected right ankle disability. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). See also Fenderson v. West, 12 Vet. App. 119, 126 (1999) (applying this concept to initial ratings). Evaluation of the same disability under several diagnostic codes, or pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board will consider not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is considered competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Analysis - Lumbar Spine The Veteran seeks a rating in excess of 40 percent for his service-connected lumbar spine disability. The Veteran's lumbar spine disability has been rated under Diagnostic Code 5237, which contemplates forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating, the next higher rating, is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted for ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See id. at Note 5. The Veteran does not contend, and the evidence does not suggest, that he has experienced unfavorable ankylosis of the entire thoracolumbar spine at any time during the pendency of the appeal. Indeed, the June 2008, January 2010, and September 2013 VA examiners noted that the Veteran could perform range of motion movements with the lumbosacral spine, indicating the Veteran's spine is not fixed in flexion or extension. The Court, citing Dorland's Illustrated Medical Dictionary (28th ed. 1994), has repeatedly recognized that, at least for VA compensation purposes, ankylosis is defined as "immobility and consolidation of a joint due to disease, injury or surgical procedure." See Colayong v. West, 12 Vet. App. 524, 528 (1999); Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). Because the evidence shows that the Veteran has not had unfavorable ankylosis, and indeed, the Veteran does not contend otherwise, the preponderance of the evidence is against his claim of entitlement to an evaluation in excess of 40 percent. In reaching this determination, the Board reiterates that the maximum evaluation under Diagnostic Code 5242 for limitation of motion of the thoracolumbar spine is 40 percent. Further, the Court has held that the provisions of 38 C.F.R. §§ 4.40 and 4.45, which relate to limitation of motion due to pain, are thus not applicable. See Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). As such, even though the evidence shows that many of the DeLuca factors are present, a rating higher than 40 percent based on limitation of motion due to pain, is not available. Accordingly, the Veteran's assertion that an increased rating is warranted is without merit. The Board further finds that the next higher rating, a 60 percent, is not warranted on the basis Intervertebral Disc Syndrome (IVDS) causing of incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. On VA examination in January 2010 the Veteran reported no incapacitating episodes in the past 12 months and in September 2013 the VA explained that the Veteran does not have IVDS. The Board notes that the June 2008 VA examiner noted incapacitating episodes in the past 12 months. However, there is no evidence these episodes lasted for a total duration of six weeks during the previous twelve months and the Veteran reported he has missed a day or two of work from five to six times over the past year. The treatment notes do not indicate incapacitating episodes consistent with a total duration of at least six weeks. Accordingly, as there is no evidence of bed rest prescribed by a physician having a total duration of at least six weeks during a 12 month period, an increased rating is not warranted on under Diagnostic Code 5243. Accordingly, the preponderance of the evidence is against the claim for a rating in excess of 40 percent for the service-connected lumbar spine disability; there is no doubt to be resolved; and a rating in excess of 40 percent is not warranted. Analysis - Right Ankle The Veteran seeks a compensable rating for his service-connected right ankle disability. After a review of all the evidence, lay and medical, the Board finds that the criteria for a rating of 10 percent have been met for the entire period on appeal. Diagnostic Code 5271 rates the limitation of motion of the ankle, and assigns a maximum 20 percent rating for marked limitation of motion, and a 10 percent rating for moderate limitation of motion. See 38 C.F.R. § 4.71a. The words "moderate," and "marked" as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. The April 2010 VA examiner indicated that the Veteran's right ankle experiences limited range of motion. Dorsiflexion was normal, but plantar flexion was limited to 30 degrees. No swelling, tenderness, or redness was noted. There was no discomfort with range of motion exercises. The VA examiner diagnosed the Veteran with residuals right ankle surgery with decreased range of motion, and, paradoxically, noted that the Veteran has no limitations due to his right ankle but also has decreased range of motion of the right ankle. Thus, the VA examination from April 2010 shows decreased range of motion in the Veteran's right ankle that, resolving reasonable doubt in the Veteran's favor, can be characterized as "moderate." A 10 percent rating under Diagnostic Code 5271 is warranted based on the results of the April 2010 VA examination. While the September 26, 2013, VA examination results indicate that there was normal range of motion in the Veteran's right ankle, even after repetitive-use testing, there was still pain in the Veteran's right ankle. The VA examiner opined that the Veteran's ankle does not experience weakness, fatigability, loss of motion, or incoordination during flare-ups. At the June 2016 VA examination, the Veteran reported flare-ups twice per month that tend to be activity related and brief. He reported that his ankle stays swollen and he has pain with range-of-motion, but not additional loss of motion. The Veteran reported that he would stop walking or standing during a flare. While the VA examiner noted no limitation of motion during testing, he did opine that the Veteran's ankle results in functional limitations including the need to avoid prolonged standing and walking, climbing, and squatting. Thus, the record shows continuing pain in the Veteran's right ankle that results in functional impairment and forces him to avoid prolonged standing and walking. The Board notes that when evaluating joint disabilities rated on the basis of limitation of motion, the intent of the schedule is to recognize painful motion with joint pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The provisions of 38 C.F.R. § 4.59, cited above, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). A compensable rating is warranted for joint pain pursuant to 38 C.F.R. § 4.59 for orthopedic disabilities rated under diagnostic codes containing a 10 percent rating, and the criteria for such a rating can be satisfied with lay and other non-medical evidence. Sowers v. McDonald, 27 Vet. App. 472, 480 (2016); Petitti v. McDonald, 27 Vet. App. 415, 428-29 (2015). Thus, a compensable rating is warranted in this case where the Veteran's right ankle pain results in functional impairment, but not compensable limitation of motion. However, a rating in excess of 10 percent is not warranted at any time on appeal. The results of the April 2010 VA examination, which indicate no limitation to dorsiflexion, are not consistent with "marked" limitation of motion in the Veteran's right ankle. The VA examiner did not describe the Veteran's limitation of motion as marked and there is insufficient evidence of limitation consistent with such a finding. Neither do the results of September 2013 or June 2016 VA examinations indicate "marked" limitation of motion. Both reflected normal motion in the Veteran's right ankle. The treatment notes are consistent with the findings of the VA examiners. Thus, an increased rating under Diagnostic Code 5271 is not warranted. The findings of the June 2016 VA examiner are consistent with the September 2013 findings. The VA examiner noted that the Veteran experiences flare-ups twice per month that are brief and result in pain. The Veteran reported that his ankle stays swollen but he denied additional loss of motion with the ankle. He reported that he stays off his feet and limits his walking. However, the Veteran reported that he had no additional weakness, discoordination, or additional loss of motion. The VA examiner reported that there was normal range of motion in the Veteran's ankle, including with repetitive use testing, and estimated that the Veteran's pain during flare-ups does not cause additional range of motion. The Board has considered the holding in Correia v. McDonald, that a VA examination evaluating a joint disability must record the results of motion testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. 28 Vet. App. 158, 170 (2016). While the VA examiner did not record all of these measurements, the Board finds that there is sufficient evidence to adequately resolve the Veteran's claim. The June 2016 VA examiner reported no pain on weight bearing. No limitation was recorded on range of motion testing at VA examinations in September 2013 and June 2016. Even during flare-ups, the Veteran did not report that his ankle disability resulted in limitation of motion. The treatment notes do not indicate greater limitation of motion. Without evidence of limitation of motion in the Veteran's right ankle since the September 2013 VA examination, including subjective reports of limitation of motion during flare-ups, the Board concludes that a remand to obtain measures of limitation of motion with passive range of motion and nonweight-bearing would result in needless delay, and is unwarranted. Further, the Board notes that the Veteran has been granted a 10 percent rating for the entire period on appeal even though the VA examinations stopped reflecting compensable limitation of motion in September 2013. The Board has additionally considered whether any other Diagnostic Code or separate rating would be appropriate to rate the right ankle disability. Diagnostic codes 5270 and 5272 focus on ankylosis. As noted above, ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Colayong v. West, 12 Vet. App. 524 (1999) (citing Dorland's Illustrated Medical Dictionary 86 (28th Ed. 1994)). Under Diagnostic Code 5270, a 40 percent rating will be assigned for ankylosis of the ankle with plantar flexion at more than 40 degrees, or dorsiflexion at more than 10 degrees or with abduction, adduction, inversion or eversion deformity, a 30 percent rating will be assigned for ankylosis of the ankle with plantar flexion between 30 and 40 degrees or dorsiflexion between 0 and 10 degrees, and a 20 percent rating will be assigned for plantar flexion less than 30 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5272, ankylosis of the subastragalar or tarsal joint in poor weight-bearing position will be assigned a 20 percent rating, and ankylosis of the subastraglar or tarsal joint in good weight-bearing position will be assigned a 10 percent rating. Diagnostic Code 5273 addresses malunion of the os calcis and astragalus. Malunion of the os calcis or astragalus with marked deformity will be assigned a 20 percent rating, and malunion of the os calcis or astragalus with moderate deformity will be assigned a 10 percent rating. Additionally, a 20 percent rating will be assigned under Diagnostic Code 5274 if the Veteran had undergone an astragalectomy. Based on the evidence, both medical and lay, the Board finds that no other Diagnostic Code or separate rating for either ankle is warranted. The evidence does not demonstrate that the Veteran has ankylosis to be rated under Diagnostic Codes 5270 or 5272. The September 2013 VA examiner concluded that the Veteran's right ankle does not have ankylosis and the June 2016 VA examiner reported no limitation of motion, indicating the Veteran's right ankle was not immobile or fixed. Additionally, as the evidence does not show malunion of the os calcis or astragalus, and the Veteran has not undergone an astragalectomy, the Veteran is not entitled to a separate rating under Diagnostic Codes 5272-5274. The Veteran has not undergone a total ankle replacement of the right ankle; therefore, Diagnostic Code 5056 does not apply. 38 C.F.R. § 4.71a. In sum, the Board finds that an initial 10 percent rating for the service-connected right ankle disability is warranted for the entire period on appeal. However, the preponderance of the evidence is against an initial rating in excess of 10 percent; as such, the benefit of the doubt doctrine is not applicable and the claim for a higher rating must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. III. Service Connection The Veteran asserts entitlement to service connection for coronary artery disease (CAD) and a right knee injury. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. E.g., Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting from disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted on a presumptive basis for certain chronic diseases, including arthritis and degenerative joint disease, if they are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In order to show a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b). A decision of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr, 21 Vet. App. at 308-09 (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot); Layno, 6 Vet. App. at 470 (a veteran is competent to report on that of which he or she has personal knowledge). Notwithstanding the above, however, a veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See 38 C.F.R. § 3.159(a)(2); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). Lay evidence can be considered competent and sufficient evidence of a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d 1372 at 1376-77. Additionally, a lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. Id. at 1376-77. The Board may weigh the absence of contemporaneous medical evidence as one factor to weigh against the other evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Coronary Artery Disease (CAD) The Veteran asserts entitlement to service connection for a heart disability. Resolving reasonable doubt in the Veteran's favor, the evidence is at least in equipoise as to whether the Veteran's current CAD is related to his service. While there is no evidence of CAD during the Veteran's service, as noted above, service connection can be granted for later development of a disability when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The June 2016 VA examiner was asked to address whether the Veteran's CAD began in service, and address the evidence of high cholesterol from service. The VA examiner noted that the Veteran's coronary symptoms began in 2007. The VA examiner also noted that the Veteran's in-service total cholesterol was not considered elevated during service considering his age. However, the VA examiner noted that the Veteran's low high-density lipoprotein (HDL) readings were more of a risk factor than his total cholesterol readings. The Veteran's HDL reading of 38 was noted to be low, and the VA examiner opined that this is one of the risk factors for developing CAD. The VA examiner then explained that CAD tends to start in early adulthood and risk factors lead to the progression of the disease. The Veteran's aging, family history, gender, smoking, and low HDL played some role in the progression of his CAD. Thus, the VA examiner noted that the Veteran's low HDL readings in-service were a risk factor for CAD, that CAD tends to start in early adulthood, when the Veteran was in-service, and that risk factors lead to a progression of the disease. The VA examiner ultimately concluded he could not specifically time the onset of the Veteran's asymptomatic CAD, because such an opinion would be purely speculative. However, an exact date of onset is not necessary. The VA examiner identified the Veteran's in-service test results as a risk factor for developing CAD, noted that CAD tends to develop at the age the Veteran was in-service, and described a progression of CAD due to risk factors. This provides sufficient evidence to resolve doubt in the Veteran's favor and link the Veteran's in-service signs to his later development of CAD, even without an exact date of onset. The Board notes the presence of the negative nexus opinion of the September 2013 VA examiner. However, as pointed out in the July 2014 remand, the rationale provided by the September 2013 VA examiner was in direct conflict with the objective evidence in the STRs. Thus, the opinion is of no probative value. As the opinion of the June 2016 VA examiner brings the evidence of a relationship between the Veteran's in-service low HDL readings and his development of CAD at least into relative equipoise, the Board resolves reasonable doubt in the Veteran's favor and finds that service connection is warranted for CAD. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Right Knee Disability When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for a right knee disability is not warranted. The Veteran was diagnosed with right knee joint osteoarthritis and chondrocalcinosis of the right knee at the June 2016 VA examination. Accordingly, as there are current knee disorders, the first Shedden element of service connection is satisfied. As noted above, service connection may be granted on a presumptive basis for certain chronic diseases, including arthritis, if such diseases are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. See 38 C.F.R. §§ 3.307, 3.309. In this instance, however, service connection for arthritis or degenerative joint disease on a presumptive basis is not warranted as the record does not show X-ray evidence of arthritis within one year of the Veteran's separation from active duty. While the Veteran has alleged pain in his right knee since service, objective evidence of arthritis is necessary for presumptive service connection. No treatment records or imaging studies provide evidence of arthritis in the knees or other chronic knee disabilities within a year of the Veteran's exit from service. Accordingly, service connection for a right disability on a presumptive basis is not warranted. Further, even though the Veteran asserted continuity of symptoms since service, the objective evidence does not reflect continuing complaints of symptoms. To the extent that the Veteran's assertions conflict with the objective evidence, the Board does not find them credible. Gilbert, 1 Vet. App. at 57. As such, presumptive service connection is not warranted for a chronic condition manifest in-service or shown by continuity of symptoms after service. 38 C.F.R. § 3.303(b). The Board also finds that the weight of the evidence is against a finding that the Veteran's current knee disabilities are etiologically related to the Veteran's military service on a direct basis. The STRs do not indicate a right knee injury in-service. The Board notes that the July 2014 remand indicated that the STRs referenced right knee complaints, however, it does not appear that the STRs include evidence of a right knee injury. On the Veteran's December 1976 enlistment report of medical history he reported swollen or painful joints. However, he denied a "trick" or locked knee. The report indicates that the Veteran was previously hospitalized at an Army base for his right knee. Medical examination from October 1983 revealed normal lower extremities. A report of medical history from November 1983 indicates that the Veteran was hospitalized previously for traction of his right knee, although he denied swollen or painful joints or "trick" or locked knee. An STR from December 1985 reflects an injury to the Veteran's hip, although the handwriting is difficult to decipher. While handwriting could be interpreted to reference a right knee injury, the context suggests that the Veteran was complaining of a right hip injury. First, the preceding note indicates complaints of right hip pain for the previous four months. The note in question references a four month injury, consistent with the reports of hip pain. Third, the STR includes reference to "crest," "lateral wing," and "soft tissue" injury, which are all consistent with an injury to the Veteran's hip, but make less sense in the context of an injury to the Veteran's right knee. Based on this evidence, the Board is confident that this STR deals with right hip pain, and not a right knee injury. Further, at a medical examination in March 1988 his lower extremities were noted to be normal. The same was noted in November 1992, though the examiner pointed out that the Veteran had a well-healed scar on his right knee. The Veteran reported at the February 2012 hearing that he injured his knee in 1977 or 1978 when he fell off a truck. He testified that he had sought treatment within a week and been treated for knee and back injuries. However, the Board notes that while there is evidence of complaints of back pain, there is no evidence of treatment in the STRs for right knee pain. Assuming, without deciding, that the Veteran's report of a right knee injury in-service in 1977 or 1978 is credible, competent evidence of an etiological connection between his military service and his current disability is also required. Here, the preponderance of the competent evidence is against the Veteran's claim. First, the objective evidence reflects no chronic or continuing symptoms after the claimed 1977 or 1978 injury. Evaluations in October 1983, November 1983, March 1988, and November 1992 reflect normal lower extremities or a lack of evidence of ongoing right knee symptoms. Second, the opinion of the June 2016 VA examiner is highly probative. The VA examiner reviewed the Veteran's STRs and examined the Veteran in person. The VA examiner noted that there is no evidence of chronic knee problems in-service or shortly thereafter. This is consistent with the objective evidence in the Veteran's STRs. The VA examiner offered an alternative etiology for the Veteran's current right knee disabilities, namely age and occupational stresses. The VA examiner noted evidence of a calf strain during service, but opined that the Veteran's current disabilities are unrelated to this in-service injury. Ultimately, the VA examiner concluded that it is less likely than not that the Veteran's chronic knee condition is related to his service. While the VA examiner did not expressly address the Veteran's reports of a knee injury in-service, the VA examiner implicitly addressed the Veteran's assertions by stating that there was no evidence of a chronic knee injury in-service. The VA examiner's opinion is consistent with the Board's interpretation of the evidence, namely that even if the Veteran did experience a right knee injury in service, there is no evidence that the right knee injury had any lasting symptoms or chronic residuals. Finally, the Veteran's own statements are inconsistent. At the February 2012 hearing he reported that he injured his right knee in service, yet he reported to the June 2016 VA examiner that he did not injure his right knee in service. (LOOK FOR CLAIMS). He reported to the September 2013 VA examiner that he does not have any real problems with his knee. Yet at the June 2016 VA examination he reported episodic activity related flares ups of symptoms, including pain and weakness. The Board notes that there is conflicting evidence as to whether the Veteran had a preexisting injury to his right knee upon entry into service. A Veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability existed prior to service, and was not aggravated by service, will rebut the presumption of soundness. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304. When a condition is noted on the report of medical history and not noted on an examination report, the presumption of soundness is not rebutted. Thus, the Veteran's knee was presumed sound on entry. As the Veteran was presumed sound on entry, an analysis of whether a preexisting injury was aggravated by the Veteran's service is not necessary and a direct service-connection analysis is all that is required. Finally, the Board notes that the June 2016 VA examination indicates that the Veteran has a scar on his right knee. However, at the hearing the Veteran described an in-service knee injury and did not mention a resulting scar or indicate in any way that he was claiming service connection for a scar. In the representative's June 2014 brief, he mentioned nothing about a claim for service connection for a scar and focused on evidence of arthritic changes in the right knee. Finally, the June 2016 VA examiner opined that the Veteran's superficial knee injury was not related to a preexisting musculoskeletal injury. The VA examiner noted that the Veteran reported that this skin injury was from when he was a child and not from service. As such, the Board's decision addresses the Veteran's claim for a right knee injury and leaves the issue of a right knee scar for when the Veteran has asserted such a claim and been provided due process, such as right to representation, on the issue. In sum, the weight of the evidence shows that the Veteran's current right knee disability is unrelated to service. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. As the preponderance of the evidence is against the claim of service connection for a right knee disability, that doctrine is not applicable. 38 U.S.C.A. § 5107(b). ORDER A rating in excess of 40 percent for the lumbar spine disability is denied. An initial rating of 10 percent, but not higher, for the right ankle disability is granted for the entire period on appeal, subject to the law and regulations governing the payment of monetary benefits. Entitlement to service connection for coronary artery disease is granted. Entitlement to service connection for a right knee disability is denied. REMAND Although the Board regrets the delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that the Veteran is afforded every possible consideration. Right Shoulder In a recent case, the United States Court of Appeals for Veterans Claims (Court) held 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" 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). 38 C.F.R. § 4.59 states that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." As such, pursuant to the Correia case, an adequate VA joints examination must, wherever possible, include range of motion testing on active and passive motion and in weight-bearing and nonweight-bearing conditions. Here, the September 2013 VA examiner did not perform all the required testing for the Veteran's service-connected right shoulder disability. The September 2013 VA examiner did not report range of motion testing on active and passive range of motion, or in weight-bearing and non-weight bearing conditions. As such, another VA examination is necessary to either comply with 38 C.F.R. § 4.59 or to explain why such testing cannot be performed. Sinusitis The Board instructed the RO to perform a VA examination to evaluate the current severity of the Veteran's service-connected sinusitis in the spring in the July 2013 remand. The Veteran was examined in September 2013 and the Board remanded the Veteran's claim in July 2014 to ensure compliance with the Board's July 2013 remand directives and schedule the Veteran for a VA examination in the spring. Instead, the Veteran was examined in June 2016. The VA examiner reported that the Veteran has flares of his symptoms in the spring and fall, but did not indicate that the Veteran was being examined during a flare. The VA examiner reported a one flare of acute sinusitis in the past twelve months. The Board specifically instructed the RO to schedule the Veteran for an examination in the spring when the Veteran was most symptomatic. To comply with the previous remand directives, the RO should schedule the Veteran for a VA examination during March, April, or May, when the Veteran is experiencing a flare, or provide a statement as to why such an examination cannot be scheduled during a flare. Left Eye Finally, the Board specifically instructed the RO in the July 2013 remand to provide the VA examiner with a copy of the Veteran's claims file and have the examiner note review of the claims file. The October 2013 VA examiner did not review the Veteran's claims file or review any records. As the October 2013 VA examination does not comply with the Board's instructions, remand is necessary to obtain a new opinion. TDIU The development requested in connection with the foregoing claims could have bearing on whether an award of TDIU is proper. Hence, this final issue is not yet ripe for appellate review and must be deferred pending readjudication of those other remanded claims. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two or more issues are inextricably intertwined if the disposition of one claim could have a significant impact on the outcome of another). Since the claims file is being returned it should be updated to include any recent VA treatment records that are not of record. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers, to obtain the treatment records identified by the Veteran. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. After completion of the above development, schedule the Veteran for a VA examination by an examiner with the appropriate expertise to determine the current nature and severity of the Veteran's service-connected right shoulder disability. The VA examiner should review the claims folder and note such review. All indicated tests should be conducted. (a) A thorough orthopedic examination of the right shoulder should be conducted, describing all associated symptomatology. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain in the right shoulder. The examiner should also test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for both the left and right shoulders. If the examiner is unable to conduct the required testing, he or she should clearly explain why this is so. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups (if the Veteran describes flare-ups). The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If this is not feasible to determine without resort to speculation, the examiner must provide an explanation for why this is so. 3. After completion of the above development, schedule the Veteran for a VA examination by an examiner with the appropriate expertise to determine the current nature and severity of the Veteran's service-connected sinusitis. The VA examination should be scheduled for the spring months (March, April, or May) and, if possible, during a flare of the Veteran's symptoms. If it is not possible to schedule the Veteran for an examination during these times, the RO should include a formal finding to that effect in the file. The claims folder should be provided to the examiner and the VA examiner should indicate that the Veteran's records have been reviewed. The examiner must address the frequency of episodes of sinusitis per year, whether such episodes are incapacitating, the specific treatments (e.g., antibiotics) needed for the sinusitis, and all other current symptoms of sinusitis (e.g., pain, purulent discharge, crusting). 4. Afford the Veteran a VA examination to determine the etiology of his currently diagnosed vitreous hemorrhage of the left eye. Any and all special studies or tests deemed necessary must be conducted. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's vitreous hemorrhage of the left eye had its onset in service. In this regard the Veteran has reported that his left eye disability was incurred as a result of weakening the back vessel of his eye by lifting large tires and other heavy objects in service, which led to the eventual rupture of the vessel and the currently diagnosed vitreous hemorrhage. The Veteran's claims folder must be made available to and reviewed by the examiner and the examiner should acknowledge such review. A complete rationale should be given for all opinions and conclusions expressed. The examiner is advised that the Veteran is competent to report history and symptoms and that his reports must be considered in formulating the requested opinion. If the examiner rejects the Veteran's reports, the examiner should provide a rationale for doing so. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so, and must state whether there is additional evidence that would permit the necessary opinion to be made. 5. After the above development has been completed, readjudicate the Veteran's claims. If the benefits sought remain denied, provide the Veteran and his representative with a supplemental statement of the case, and return the case to the Board. (CONTINUED ON NEXT PAGE) The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs