Citation Nr: 1804654 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 13-09 277A DATE THE ISSUES 1. Entitlement to service connection for plantar fasciitis. 2. Entitlement to service connection for chorioretinal scar with floaters. 3. Entitlement to service connection for a back disability. 4. Entitlement to service connection for a right shoulder disability. 5. Entitlement to service connection for a left shoulder disability. 6. Entitlement to service connection for a left hip disability. 7. Entitlement to service connection for a right ankle disability. 8. Entitlement to an initial compensable disability rating for right great toe bunion. 9. Entitlement to an initial disability rating in excess of 10 percent for status post left toe bunionectomy with scarring. 10. Entitlement to service connection for gastroesophageal reflux disease (GERD). ORDER The claim of entitlement to service connection for plantar fasciitis is denied. The claim of entitlement to service connection for chorioretinal scar with floaters is denied. The claim of entitlement to service connection for a back disability is denied. The claim of entitlement to service connection for a right shoulder disability is denied. The claim of entitlement to service connection for a left shoulder disability is denied. The claim of entitlement to service connection for a left hip disability is denied. The claim of entitlement to service connection for a right ankle disability is denied. The claim of entitlement to an initial compensable disability rating for a right great toe bunion is denied. The claim of entitlement to an initial disability rating in excess of 10 percent for status post left toe bunionectomy with scarring is denied. (CONTINUED ON NEXT PAGE) FINDINGS OF FACT 1. The record does not show a diagnosis of plantar fasciitis at any time during the period on appeal. 2. The record does not show a diagnosis of chorioretinal scar with floaters at any time during the period on appeal. 3. The record does not show a diagnosis of a back disability at any time during the period on appeal. 4. The record does not show a diagnosis of a right shoulder disability at any time during the period on appeal. 5. The record does not show a diagnosis of a left shoulder disability at any time during the period on appeal. 6. The record does not show complaints, symptoms, or a diagnosis of a left hip disability during service or since separation from service. 7. The record does not show a diagnosis of a right ankle disability at any time during the period on appeal. 8. The Veteran's right great toe bunion manifested with mild to moderate symptoms and without resection of the metatarsal head. 9. Throughout the rating period on appeal, the Veteran's status post left bunionectomy with scarring has been assigned the maximum schedular rating authorized under Diagnostic Code 5280; the symptomatology associated with the Veteran's status post left bunionectomy with scarring is adequately addressed by this rating. 10. The Veteran's status post left bunionectomy scar was not unstable or painful and did not cover an area greater than 39 square cm. CONCLUSIONS OF LAW 1. The criteria for service connection for plantar fasciitis have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for service connection for chorioretinal scar with floaters have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). 4. The criteria for service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). 5. The criteria for service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). 6. The criteria for service connection for a left hip disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). 7. The criteria for service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). 8. The criteria for a compensable initial disability rating for right great toe bunion have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5280 (2017). 9. The criteria for an initial disability rating in excess of 10 percent for status post left bunionectomy with scarring have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5280 (2017). INTRODUCTION The Veteran had honorable active duty service from December 1986 to December 2006 with the United States Air Force. This included service in Southwest Asia. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) denying the claims of entitlement to service connection currently on appeal. The rating decision also granted service connection for a right great toe bunion, assigning a noncompensable (0 percent) rating, and service connection for status post left bunionectomy with scarring, assigning a 10 percent rating. The Board remanded the issue for further development in October 2016. The Board notes that the actions requested in the prior remand have been undertaken. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The case has therefore been returned to the Board for appellate review. The issue of entitlement to service connection for GERD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). (CONTINUED ON NEXT PAGE) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2017). Compliant VCAA notice was provided in December 2008. In addition, the Board finds that the duty to assist a claimant has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records. VA examinations have been conducted and any necessary opinions obtained. After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Relevant Laws and Regulations for Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 1. Entitlement to service connection for plantar fasciitis. The Veteran contends that he has a current diagnosis of plantar fasciitis that manifested during service. However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran does not suffer from a current disability of plantar fasciitis that manifested during, or as a result of, active military service. As noted above, the first question for the Board is whether the Veteran has a current disability. An April 2009 VA X-ray findings noted a history of plantar fasciitis, but did not show any current diagnosis. The Veteran was afforded a VA examination in April 2009. The Veteran reported a history of a diagnosis of plantar fasciitis. At the examination, the Veteran noted constant pain in the bottom of his feet and in the great toe joints. The examiner reviewed the Veteran's claims file, performed a physical examination, and found no diagnosis of plantar fasciitis as there was no pathology to render a diagnosis. The remainder of the claims file is silent regarding any diagnosis of plantar fasciitis during the claims period. Without evidence of a current disability, service connection may not be granted. The Board acknowledges that the Veteran had a diagnosis of plantar fasciitis in service in April 1996; however, the Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran does not have a current diagnosis of plantar fasciitis. There also is no evidence of a disability at any point during the claims period or shortly prior to the claim being filed. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The Board recognizes that the Veteran believes he is entitled to service connection for plantar fasciitis. As a lay person, the Veteran is certainly competent to testify to symptoms he is experiencing such as pain. However, the record contains no evidence to demonstrate that the Veteran has the requisite training or expertise to offer a medical opinion as complex as a specific diagnosis of a medical disability. As such, the Veteran's lay assertions fail to demonstrate that he suffers from a current chronic disability for which service connection may be established. \ Based on the evidence cited above, the Board finds that the preponderance of the evidence is against the claim of service connection for plantar fasciitis. As the preponderance of the evidence is against the claim for service connection for plantar fasciitis, the benefit of the doubt rule does not apply. 38 C.F.R. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for chorioretinal scar with floaters. The Veteran also contends that he has a current diagnosis of chorioretinal scar with floaters that manifested during service. However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran does not presently suffer from a chorioretinal scar with floaters that manifested during, or as a result of, active military service. As previously noted, the first question for the Board is whether the Veteran has a current disability. The Veteran was afforded a VA examination in April 2009. The Veteran was referred to evaluate a chorioretinal scar and vision floaters. The Veteran indicated that his eye condition was not due to trauma. He had no pain, distorted vision, redness, glare, sensitivity to light, swelling, halos, watering, enlarged images, or floaters. The Veteran reported the functional impairment of floaters and sensitivity to light. The Veteran had a normal ocular examination in both eyes with no evidence of any chorioretinal scarring. The remainder of the claims file is silent regarding any diagnosis of chorioretinal scar with floaters during the claims period. Without evidence of a current disability, service connection may not be granted. The Board acknowledges that the Veteran had a diagnosis of chorioretinal scar with floaters OD (right eye) in service in August 1999 and again in June 2006; however, the Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer, 3 Vet. App. at 225. The Veteran does not have a current diagnosis of chorioretinal scar with floaters. There also is no evidence of a disability at any point during the claims period or shortly prior to the claim being filed. See McClain, 21 Vet. App. at 319; Romanowsky, 26 Vet. App. at 289. The Board recognizes that the Veteran believes he is entitled to service connection for a chorioretinal scar with floaters. As a lay person, the Veteran is certainly competent to testify to symptoms he is experiencing such as floaters in his vision. However, the record contains no evidence to demonstrate that the Veteran has the requisite training or expertise to offer a medical opinion as complex as a specific diagnosis of a medical disability. As such, the Veteran's lay assertions fail to demonstrate that he suffers from a current chronic disability for which service connection may be established. Based on the evidence cited above, the Board finds that the preponderance of the evidence is against the claim of service connection for chorioretinal scar with floaters. As the preponderance of the evidence is against the claim for service connection for chorioretinal scar with floaters, the benefit of the doubt rule does not apply. 38 C.F.R. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for a back disability. The Veteran also contends that he has a current back disability that manifested during service. However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran does not suffer from a current back disability that manifested during, or as a result of, active military service. As previously noted, the first question for the Board is whether the Veteran has a current disability. The Veteran was afforded a VA examination in April 2009. The Veteran reported being diagnosed with back strain since 1991. He stated that he injured it during a bad fall while playing intramural basketball. The examiner performed a physical examination and noted no diagnosis of back strain, as there was no pathology to render a diagnosis for the back. April 2009 X-ray records showed that lumbar vertebral body heights and alignment were maintained. Disc spaces were maintained. Oblique views showed intact posterior elements and neural arches. Transverse elements were intact. The examiner noted no acute bony abnormality seen in the lumbar region and no soft tissue abnormality was demonstrated. The remainder of the claims file is silent regarding any diagnosis of a back disability during the claims period. Without evidence of a current disability, service connection may not be granted. The Board acknowledges that the Veteran had a diagnosis of back strain of the paraspinal muscles during service in March 1991 and May 1991; however, the Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer, 3 Vet. App. at 225. The Veteran does not have a current diagnosis of chorioretinal scar with floaters. There also is no evidence of a disability at any point during the claims period or shortly prior to the claim being filed. See McClain, 21 Vet. App. at 319; Romanowsky, 26 Vet. App. at 289. The Board recognizes that the Veteran believes he is entitled to service connection for a current disability of the back. As a lay person, the Veteran is certainly competent to testify to symptoms he is experiencing such as pain. However, the record contains no evidence to demonstrate that the Veteran has the requisite training or expertise to offer a medical opinion as complex as a specific diagnosis of a medical disability. As such, the Veteran's lay assertions fail to demonstrate that he suffers from a current chronic disability for which service connection may be established. Based on the evidence cited above, the Board finds that the preponderance of the evidence is against the claim of service connection for a back disability. As the preponderance of the evidence is against the claim for service connection for a back disability, the benefit of the doubt rule does not apply. 38 C.F.R. § 5107; 38 C.F.R. § 3.102. 4. Entitlement to service connection for a right shoulder disability. The Veteran also contends that he has a current right shoulder disability that manifested during service. However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran does not suffer from a current right shoulder disability that manifested during, or as a result of, active military service. As previously noted, the first question for the Board is whether the Veteran has a current disability. The Veteran was afforded a VA examination in April 2009. The Veteran reported a diagnosis of right shoulder impingement syndrome and bursitis since 1990. Right shoulder X-rays were within normal limits. The examiner performed a physical examination and found no current diagnosis as the condition had resolved. April 2009 X-ray records showed a negative study of the shoulder. Osseous structures and joint spaces were unremarkable. The Veteran's treatment records show complaints of shoulder pain. The Veteran was afforded a VA examination in February 2017. The examiner diagnosed subacromial and subdeltoid bursitis. The examiner noted that he was seen in service a few times for bursitis of the right shoulder. It was stiffening and popping with pain. He could not hold his arm above his head for long periods of time. The examiner noted that the Veteran still experiences popping and stiffness. He also has slight pain located in the joint. The examiner also noted, however, that the Veteran's right shoulder examination was normal. He acknowledged the Veteran's pain on elevation, but also noted that X-rays were normal. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury. The examiner's rationale was given in four parts. First, the Veteran gave a history of a right shoulder condition in service. There was no history of injury and he was told that it was bursitis. Second, on leaving the service, the examiner found no evidence that he received significant treatment and he was not currently on significant treatment. Third, the current examination was normal except for some pain on elevation. Fourth that the Veteran's occupation of avionics technician and landing systems required climbing onto planes and towers, requiring functioning upper extremities. The Board notes that pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability. Without a pathology to which the Veteran's assertions of right shoulder pain can be attributed, there is no basis to find a right shoulder disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir.2001). Here, despite the findings of a right shoulder injury during service and a private treatment record noting complaints of shoulder pain, two VA examinations have found no current diagnosis of a right shoulder disability and the private treatment records show only a diagnosis of shoulder pain. Without evidence of a current disability, service connection may not be granted. The Board acknowledges that the Veteran had a diagnosis of bursitis of the right shoulder in May 1990; however, the Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer, 3 Vet. App. at 225. The Veteran does not have a current diagnosis of chorioretinal scar with floaters. There also is no evidence of a disability at any point during the claims period or shortly prior to the claim being filed. See McClain, 21 Vet. App. at 319; Romanowsky, 26 Vet. App. at 289. The Board recognizes that the Veteran believes that he is entitled to service connection for a right shoulder disability. As a lay person, the Veteran is certainly competent to testify to matters such as shoulder pain. However, the record contains no evidence to suggest that the Veteran has the requisite training or expertise to offer a medical opinion as complex as a specific diagnosis. As such, his lay assertions are not competent evidence of a current right shoulder disability that manifested during, or as a result of, active military service. Based on the evidence cited above, the Board finds that the preponderance of the evidence is against the claim of service connection for a right shoulder disability. As the preponderance of the evidence is against the claim for service connection for a right shoulder disability, the benefit of the doubt rule does not apply. 38 C.F.R. § 5107; 38 C.F.R. § 3.102. 5. Entitlement to service connection for a left shoulder disability. The Veteran also contends that he has a current left shoulder disability that manifested during service. However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran does not suffer from a current disability of the left shoulder that manifested during, or as a result of, active military service. As previously noted, the first question for the Board is whether the Veteran has a current disability. The Veteran was afforded a VA examination in April 2009. The Veteran reported left shoulder strain since 2000. He stated that he injured it playing intramural basketball, hung on the rim to regain balance. The examiner found no diagnosis of the left shoulder as there was no pathology to render a diagnosis. April 2009 X-ray records showed a negative study of the shoulder. Osseous structures and joint spaces were unremarkable. The remainder of the Veteran's post-service treatment records does not indicate a left shoulder disability during the claims period on appeal. Without evidence of a current disability, service connection may not be granted. The Board acknowledges that the Veteran had multiple complaints of left shoulder pain during service including diagnoses of a rotator cuff injury, left shoulder strain, and possible stenoid labrum tear in 2000 and 2001; however, the Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer, 3 Vet. App. at 225. The Veteran does not have a current diagnosis of chorioretinal scar with floaters. There also is no evidence of a disability at any point during the claims period or shortly prior to the claim being filed. See McClain, 21 Vet. App. at 319; Romanowsky, 26 Vet. App. at 289. The Board recognizes that the Veteran believes that he is entitled to service connection for a left shoulder disability. As a lay person, the Veteran is certainly competent to testify to matters such as shoulder pain. However, the record contains no evidence to suggest that the Veteran has the requisite training or expertise to offer a medical opinion as complex as a specific diagnosis. As such, his lay assertions are not competent evidence of a current left shoulder disability that manifested during, or as a result of, active military service. The Board notes that there is also no evidence of a disability at any point during the claims period or shortly prior to the claim being filed. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Based on the evidence cited above, the Board finds that the preponderance of the evidence is against the claim of service connection for a left shoulder disability. As the preponderance of the evidence is against the claim for service connection for a left shoulder disability, the benefit of the doubt rule does not apply. 38 C.F.R. § 5107; 38 C.F.R. § 3.102. 6. Entitlement to service connection for a left hip disability. The Veteran also contends that he has a current left hip disability that manifested during service. However, as outlined below, the preponderance of the evidence of record does not demonstrate that the Veteran suffers from a current disability of the left hip that manifested during, or as a result of, active military service. As previously noted, the first question for the Board is whether the Veteran has a current disability. The Board notes that the record is silent for any left hip disability during service or since separation from service. Without evidence of a current disability, service connection may not be granted. The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran does not have a current diagnosis of a left hip disability. The Board notes that there is also no evidence of a disability at any point during the claims period or shortly prior to the claim being filed. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The Board acknowledges that the Veteran's left hip was not addressed in any of the VA examinations. The Board finds, however, as a fact that there was no in-service injury or disease, including no chronic in-service symptoms of a disability of the left hip. In fact, the only service treatment records that address the Veteran's hip are undated X-rays of the pelvis and left hip. Those X-rays found no demonstrable fractures or dislocations and no gross soft tissue deformities or calcific depositions. Because there is no in-service injury or disease to which competent medical opinion could relate a current disability, there is no reasonable possibility that a VA examination or opinion could aid in substantiating the current claim for service connection for a disability of the left hip. See 38 U.S.C.A. § 5103A(a)(2) (West 2002) (VA "is not required to provide assistance to a claimant . . . if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim"). The Board has considered the decision in Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); however, in the absence of evidence of an in-service disease or injury, referral of this case to obtain an examination and/or an opinion as to the etiology of the Veteran's claimed disability would in essence place the examining physician in the role of a fact finder, would suggest reliance on an inaccurate history of occurrence of an in-service injury or disease, and could only result in a speculative opinion or purported opinion of no probative value. In other words, any medical opinion which purported to provide a nexus between the Veteran's claimed disability and his military service would necessarily be based on an inaccurate history regarding what occurred in service, so would be of no probative value. The U.S. Court of Appeals for Veterans Claims (Court) has held on a number of occasions that a medical opinion premised upon an unsubstantiated account of a claimant is of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been previously rejected). The holding in Charles was clearly predicated on the existence of evidence of both an in-service injury or event and a current diagnosis. Referral of this case for an examination or to obtain a medical opinion would be a useless act. The duty to assist by providing a VA examination or opinion is not invoked in this case because there is no reasonable possibility that such assistance would aid in substantiating the claims. See 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). The Board is left with evidence that does not indicate an in-service disability of the left hip and does not indicate a post-service disability of the left hip. The Board recognizes that the Veteran believes he is entitled to service connection for a left hip disability. As a lay person, the Veteran is certainly competent to testify to matters such as hip pain. However, the record contains no evidence to demonstrate that the Veteran has the requisite training or expertise to offer medical opinions as complex as a current diagnosis or an opinion linking a current disability to events that occurred many years earlier. As such, the Veteran's lay assertions are not competent evidence of a current left hip disability that manifested during, or as a result of, active military service. Based on the evidence cited above, the Board finds that the preponderance of the evidence is against the claim of service connection for a left hip disability. As the preponderance of the evidence is against the claim for service connection for a left hip disability, the benefit of the doubt rule does not apply. 38 C.F.R. § 5107; 38 C.F.R. § 3.102. 7. Entitlement to service connection for a right ankle disability. The Veteran also contends that he has a current right ankle disability that manifested during service. However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran does not suffer from a current disability of the right ankle that manifested during, or as a result of, active military service. As previously noted, the first question for the Board is whether the Veteran has a current disability. The Veteran was afforded a VA examination in April 2009. The Veteran reported a bilateral ankle sprain that had existed since 1987. He injured it while playing intramural basketball in 1987. X-ray findings were within normal limits with no indication of a malunion to the os calcis and no indication of malunion of the astralgus. The examiner reviewed the Veteran's records, performed a physical examination, and found no pathology to render a diagnosis for the right ankle. April 2009 X-ray records indicated a negative study. Osseous structures and joint spaces were unremarkable. The remainder of the claims file is silent regarding any diagnosis of a back disability during the claims period. Without evidence of a current disability, service connection may not be granted. The Board acknowledges that the Veteran had an inversion injury of the right ankle that was diagnosed as a right ankle sprain in April 1994; however, the Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer, 3 Vet. App. at 225. The Veteran does not have a current diagnosis of chorioretinal scar with floaters. There also is no evidence of a disability at any point during the claims period or shortly prior to the claim being filed. See McClain, 21 Vet. App. at 319; Romanowsky, 26 Vet. App. at 289. The Board recognizes that the Veteran believes that he is entitled to service connection for a right ankle disability. As a lay person, the Veteran is certainly competent to testify to matters such as ankle pain. However, the record contains no evidence to suggest that the Veteran has the requisite training or expertise to offer a medical opinion as complex as a specific diagnosis. As such, his lay assertions are not competent evidence of a current right ankle disability that manifested during, or as a result of, active military service. Based on the evidence cited above, the Board finds that the preponderance of the evidence is against the claim of service connection for a right ankle disability. As the preponderance of the evidence is against the claim for service connection for a right ankle disability, the benefit of the doubt rule does not apply. 38 C.F.R. § 5107; 38 C.F.R. § 3.102. Relevant Laws and Regulations for Increased Rating Claims Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2015); see also 38 C.F.R. §§ 4.45, 4.59 (2015). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 8. Entitlement to an initial compensable disability rating for right great toe bunion. The Veteran also contends that his right great toe bunion warrants a compensable initial disability rating. However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran's right toe disability has not warranted a compensable evaluation at any time during the pendency of this claim. The Veteran's right great toe bunion was rated as noncompensable under Diagnostic Code 5280 for unilateral hallux valgus. Under that rating, hallux valgus that has been operated on with resection of the metatarsal head or severe hallux valgus equivalent to the amputation of the great toe warrant a 10 percent disability rating. 38 C.F.R. § 4.71a. The question before the Board is whether the Veteran's hallux valgus has been operated on with resection of the metatarsal head or whether it is equivalent to the amputation of the great toe. The Board finds that competent, credible, and probative evidence establishes that the Veteran's right great toe bunion did not manifest to a degree that more nearly approximates the criteria for a compensable disability rating. The Veteran was afforded a VA examination in April 2009. The Veteran reported pain in the right great toe joint that occurred constantly. The pain was localized, aching, sharp, and sticking. The pain was elicited by physical activity, stress, and extended standing. It was relieved by rest, over the counter medications, or going barefoot. Examination of the right foot revealed tenderness, but no painful motion, edema, disturbed circulation, weakness, atrophy of the musculature, heat, redness, or instability. The examiner noted active motion in the metatarsophalangeal joint of the great toe. The examiner diagnosed hallux valgus. The degree of angulation of the right hallux valgus was moderate with no resection of the metatarsal head. The Veteran did not have any limitation with standing or walking. He did not require any type of support with his shoes. April 2009 X-rays showed right foot hallux valgus with bunion formation. Tarsal alignment was maintained. No acute bony abnormality was demonstrated. The examiner noted no plantar calcaneal spur. The Veteran was afforded an additional VA examination in February 2017. The examiner diagnosed right hallux valgus. The Veteran reported stiffness, popping, locking, and soreness to the right great toe. The Veteran noted mild or moderate symptoms of hallux valgus. The Veteran did not have surgery on the right great toe. The examiner performed a physical examination of the right great toe. The examiner found that the Veteran's service-connected right bunion remained mild in severity. The examiner noted full active range of motion in the right great toe. He ambulated with a non-antalgic gait and he received no prescribed treatment for the condition. The examiner noted no pain, weakness, fatigability, or incoordination that significantly limits functional ability during flare-ups or when the foot is used repeatedly over a period of time. The examiner noted no functional loss during flare-ups or when the foot is used repeatedly over a period of time. The Board finds that the Veteran is not entitled to a compensable disability rating for right great toe bunion. The Veteran did not undergo resection of the metatarsal head and the symptoms were consistently described as mild to moderate in severity. Therefore, the Veteran's symptoms do not manifest to a degree that more nearly approximates the criteria for a compensable disability rating for right great toe bunion. See 38 C.F.R. § 4.71a, Diagnostic Code 5280 The Board notes that 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca, 8 Vet. App. at 202. The Veteran's pain was noted by the VA examiners and considered in the examiner's findings and in the application of the rating criteria to the Veteran's symptoms. The findings above included the consideration of the onset of pain and repetitive use. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the current appeal. See 38 U.S.C.A. § 5107(b) (West 2002). 9. Entitlement to an initial disability rating in excess of 10 percent for status post left toe bunionectomy with scarring. The Veteran also contends that his status post left toe bunionectomy warrants an initial disability rating in excess of 10 percent. However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran's left toe disability with scarring has not warranted an evaluation in excess of 10 percent at any time during the pendency of this claim. The Veteran's right great toe bunion was rated as noncompensable under Diagnostic Code 5280 for unilateral hallux valgus. Under that rating, hallux valgus that has been operated on with resection of the metatarsal head or severe hallux valgus equivalent to the amputation of the great toe warrant a 10 percent disability rating. 38 C.F.R. § 4.71a. The Veteran was afforded a VA examination in April 2009. The Veteran reported pain in the great toe joint that occurred constantly. The pain was localized, aching, sharp, and sticking. The pain was elicited by physical activity, stress, and extended standing. It was relieved by rest, over the counter medications, or going barefoot. The Veteran had residuals of pain and scarring from the April 2003 surgery. Examination of the left foot revealed tenderness, but no painful motion, edema, disturbed circulation, weakness, atrophy of the musculature, heat, redness, or instability. The examiner noted active motion in the metatarsophalangeal joint of the left great toe. The examiner diagnosed hallux valgus. The degree of angulation of the left hallux valgus was slight with resection of the metatarsal head. The Veteran did not have any limitation with standing or walking. He did not require any type of support with his shoes. X-rays showed hallux valgus with bunion formation of the right foot and post-surgery distal first metatarsal of the left foot. April 2009 X-rays showed an osteotomy of the distal portion of the left first metatarsal. One threaded screw was in position distally. There was some subchondral cystic change in the distal first metatarsal. The examiner noted a varus realignment of the first metatarsal which appeared healed. Cortical surfaces were intact. No acute bony abnormality was demonstrated. The examiner noted post-surgery distal first metatarsal. The Veteran was afforded an additional VA examination in February 2017. The examiner diagnosed left status-post bunionectomy. The Veteran reported left toe pain that he described as a sharp, stabbing sensation. He noted stiffness and occasional swelling to the left great toe, noting that it locks up at times. The Veteran noted mild or moderate symptoms of hallux valgus bilaterally. The examiner noted resection of metatarsal head on the left in April 2003. The examiner found pain on physical examination of the bilateral feet that did not contribute to functional loss. The Veteran ambulated with a non-antalgic gait. The examiner noted no pain, weakness, fatigability, or incoordination that significantly limits functional ability during flare-ups or when the foot is used repeatedly over a period of time. The examiner noted no functional loss during flare-ups or when the foot is used repeatedly over a period of time. The Veteran did not use any assistive devices as a normal mode of locomotion. The Veteran's disability did not impact his ability to perform any type of occupational task. The Veteran's service-connected condition of status post left bunionectomy with scarring remained mild in severity. The examiner noted full active range of motion in the left great toe. He received no prescribed treatment for the condition. The Board finds that a disability rating in excess of 10 percent is not warranted for status post left bunionectomy. The Veteran has been assigned a 10 percent rating under Diagnostic Code 5280 for hallux valgus. Diagnostic Code 5280 contemplates ratings for hallux valgus. Under those criteria, a maximum 10 percent rating is assigned for unilateral hallux valgus when the condition is post-operative with resection of metatarsal head or when the condition is severe, if equivalent to amputation of the great toe. The Veteran is receiving the maximum 10 percent rating. See 38 C.F.R. § 4.71a, Diagnostic Code 5280. It is inappropriate to rate the Veteran's disability by analogy to other diagnostic codes as the Veteran is service-connected for hallux valgus, which has its own diagnostic code. Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). Furthermore, the Board finds that the Veteran is not entitled to the assignment of a higher rating as a result of functional loss due to weakness, fatigability, incoordination, or pain on movement. As noted above, the Board finds that, as the Veteran is currently in receipt of the maximum rating provided by Diagnostic Code 5280, there is no basis for the assignment of a higher evaluation based on DeLuca and the related provisions of 38 C.F.R. § 4.40, 4.45, and 4.59. See Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997) (finding that consideration of DeLuca is not applicable where claimant is in receipt of the maximum schedular rating for limitation of function under the pertinent diagnostic code). The Board acknowledges that the medical evidence of record indicates that the Veteran has a residual surgical scar of the left foot. The Board must consider whether a separate disability rating is warranted for the scar. To receive a separate compensable disability rating for his scar, the evidence must show a scar that is deep, nonlinear and at least 39 square cm, a scar that is superficial, nonlinear, and at least 929 square cm, or a scar that is unstable or painful. 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7804. The August 2017 VA examiner noted a scar on the left great toe measuring 4 cm by 0.1 cm. The scar was not painful or unstable and did not have a total area equal to or greater than 39 square cm. Therefore, the Board finds that the Veteran's scar did not manifest to a degree that more nearly approximates the criteria for a separate compensable disability rating. Id. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the current appeal. See 38 U.S.C.A. § 5107(b) (West 2002). REMAND 10. Entitlement to service connection for GERD Finally, the Veteran also contends that he is entitled to service connection for GERD. Regrettably, an additional remand is required to afford the Veteran a full opportunity at supporting his claim. The Veteran was afforded a VA examination in February 2017. The examiner reviewed the VA claims file and VA medical records and performed a physical evaluation. The examiner opined that the Veteran's GERD was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner cited a December 2003 treatment record showing complaints of chest pain that resulted in a diagnosis of indigestion. The examiner specifically stated that he found no other complaints of chest pain or indigestion in the service treatment records, which indicated that his complaints were not chronic or reoccurring in nature. The Board notes that the examiner based his opinion on an inaccurate factual background. The Board notes that multiple treatment records show complaints of chest pain or treatment for indigestion. At a minimum, the Veteran specifically reported complaints related to chest pain in December 2002, December 2003, February 2004, and April 2004. Once the Secretary determines that an examination or opinion is required to decide a claim, VA is required to ensure that such an examination or opinion is adequate; if it is not "it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2; Steel v. Nicholson, 21 Vet.App. 120, 124 (2007) (stating that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"); see also Hicks v. Brown, 8 Vet.App. 417, 422 (1995) (concluding that inadequate medical evaluation frustrates judicial review). Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the February 2017 examiner for further comment. If the examiner is not available, provide the claims file to an appropriate VA examiner for a nexus opinion. The examiner should thoroughly review the claims file, specifically the Veteran's service treatment records, then answer the following: Is it at least as likely as not (50 percent probability or more) that the Veteran's diagnosed GERD manifested during service or is causally related to the Veteran's active service? The examiner should specifically note the December 2002, December 2003, February 2004, and April 2004 service treatment records, as well as any additional records showing chest pain or indigestion. A complete rationale must be provided for all opinions offered. If an additional examination is required for the examiner to sufficiently address the above questions, then a new examination should be afforded. If an opinion cannot be offered without resort to mere speculation, the examiner should explain why this is the case and identify what additional evidence, if any, may allow for a more definitive opinion. 2. After undertaking the development above and any additional development deemed necessary, the Veteran's claim should be readjudicated. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and be given an appropriate period to respond thereto before the case is returned to the Board, if in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) 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). ______________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel Copy mailed to: Disabled American Veterans Department of Veterans Affairs