Citation Nr: 18157422
Decision Date: 12/12/18	Archive Date: 12/12/18

DOCKET NO. 09-30 074
DATE:	December 12, 2018
ORDER
Entitlement to service connection for residuals of a right shoulder injury (right shoulder disability) is denied.
Entitlement to service connection for lumbar spondylosis with degenerative joint disease (low back disability) is denied.
Entitlement to service connection for a disability manifested as transient pain in the bilateral leg muscles is denied.
Entitlement to an initial disability rating for residuals of a right foot injury (right foot disability) greater than 10 percent prior to July 31, 2014 and greater than 30 percent thereafter is denied.
Entitlement to a separate, initial compensable disability rating for the right ankle component of a service-connected right foot / ankle condition (right ankle disability) prior to July 31, 2014 is denied.
Entitlement to an initial disability rating for a right ankle disability greater than 20 percent since July 31, 2014 is denied.
REMANDED
Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded.
FINDINGS OF FACT
1. The Veteran’s right shoulder disability is not the result of an injury incurred in active service; and right shoulder arthritis did not manifest to a compensable degree within one year of service.
2. The Veteran’s low back disability is not the result of an injury incurred in active service; and low back arthritis did not manifest to a compensable degree within one year of service.
3. The Veteran has no current diagnosis of a bilateral leg disability for his subjective symptoms of bilateral leg muscle pain (excluding his currently service-connected right foot and ankle disabilities); and the evidence does not show that his reported bilateral leg muscle pain has functionally impaired earning capacity.
4. Prior to July 31, 2014, the Veteran’s service-connected right foot/ankle disability manifested as symptoms and impairments approximating no worse than a moderate right foot injury, as shown by: subjective reports of right heel pain exacerbated with prolonged walking but alleviated with good shoes and rest; tenderness to palpation along the plantar aspect; plantar fasciitis; and functional impairments on physically demanding activities such as running.
5. Since July 31, 2014, the Veteran’s service-connected right foot disability has manifested as symptoms and impairments approximating no worse than a severe right foot injury, as shown by: objective evidence of right foot pain on examination; chronically compromised weight-bearing; right foot pain on weightbearing and non-weightbearing; difficulty with prolonged walking, running, and standing; and regular use of assistive devices.
6. Prior to July 31, 2014, the Veteran’s service-connected right ankle disability manifested primarily as complaints of pain mildly exacerbated with prolonged walking and alleviated with wearing good shoes and rest, as well as mild soft tissue swelling; however, at no point during this period did the right ankle disability manifest as or approximate moderate or marked limited motion, right ankle ankylosis, right subastragalar or tarsal joint ankylosis, malunion of the os calcis or astragalus, or astragalectomy.
7. Since July 31, 2014, the Veteran’s service-connected right ankle disability has manifested as symptoms and impairments approximating no worse than markedly limited right ankle motion, as shown by: dorsiflexion and plantar flexion both limited to 5 degrees (accounting for estimated functional loss with flare-ups and after repeated use over time due to pain and lack of endurance); objectively painful motion; difficulty with walking, running, and standing for prolonged periods; and regular use of assistive devices; however, at no point during this period has this disability manifested as or approximated right ankle ankylosis, right subastragalar or tarsal joint ankylosis, malunion of the os calcis or astragalus, or astragalectomy.
CONCLUSIONS OF LAW
1. The criteria for service connection for a right shoulder disability have not been met.  38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309.
2. The criteria for service connection for a low back disability have not been met.  38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309.
3. The criteria for service connection for a disability manifested as transient pain in the bilateral leg muscles have not been met.  38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303.
 
4. The criteria for an initial disability rating for a service-connected right foot disability greater than 10 percent prior to July 31, 2014 and greater than 30 percent thereafter have not been met.  §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.14, 4.21, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5284.
5. The criteria for a separate, initial compensable disability rating for a service-connected right ankle disability were not met at any point prior to July 31, 2014.  §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.14, 4.21, 4.40, 4.45, 4.71a, DCs 5270-5274.
6. The criteria for an initial disability rating for a service-connected right ankle disability greater than 20 percent since July 31, 2014 have not been met.  §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.14, 4.21, 4.40, 4.45, 4.71a, DC 5271.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from August 1972 to June 1974 and from January 1975 to March 1990.  He testified before the undersigned Veterans Law Judge during a July 2014 videoconference hearing and a transcript is of record.
The record contains evidence that the Agency of Original Jurisdiction (AOJ) has not yet considered.  In October 2018 correspondence, the Veteran waived his right to initial AOJ review of that evidence.
Regarding the increased rating claims for service-connected right foot and right ankle disabilities at issue in this appeal, the AOJ originally assigned a single, 10 percent rating under DC 5284 (other foot injuries) from July 30, 2007 for a disability described as a right foot / right ankle injury.  While that issue was in remand status, the AOJ increased the initial rating for the right foot component of that disability to 30 percent under DC 5284 effective July 31, 2014 (based on the date of Veteran’s Board hearing testimony).  See November 2017 rating decision.   The AOJ also assigned a separate, initial disability rating of 20 percent under DC 5271 (limitation of ankle motion) effective July 31, 2014 for the right ankle component of that disability.  See id.; see also November 2017 Supplemental Statement of the Case (SSOC).  In response to the November 2017 SSOC, the Veteran’s former representative asserted the Veteran was entitled to an “earlier effective date” from July 2007 for the assignment of the increased and separate ratings.  See January 2018 correspondence.  Although the representative phrased this as an “earlier effective date” issue, essentially, the representative claimed the Veteran was entitled to the following: a separate, initial compensable rating for the right ankle component of the service-connected right ankle / right foot disability throughout the appeal period beginning in July 2007; and higher initial ratings throughout the appeal period beginning in July 2007 for both the right foot and right ankle components of the service-connected disability.  The Board has rephrased the issues on appeal accordingly.  The 2017 SSOC did not expressly address the sub-issue of entitlement to a separate, initial compensable rating for the right ankle component of the service-connected right ankle / right foot disability from July 2007.  However, the Board finds that this sub-issue was encompassed within the broader issue of entitlement to an increased initial rating for the service-connected right foot / right ankle disability throughout the appeal period beginning in July 2007, which the AOJ did adjudicate.  Indeed, increased initial rating claims necessarily require consideration of possible entitlement to both separate and higher ratings throughout the relevant appeal period beginning when service connection initially was granted.  Essentially, even though the AOJ did not phrase the issue as entitlement to a separate rating for the ankle prior to July 2014, the underlying elements of that issue (when was a separate rating warranted and at what percentage), are exactly what the AOJ considered when it found that the separate rating was warranted as of July 2014.  Thus, the Board finds that this sub-issue is on appeal (and always implicitly has been on appeal) as part of the broader increased initial rating claim.
This appeal has a long procedural history and has been before the Board previously.  Most recently, in May 2017, the Board remanded the service connection claim for a bilateral leg disability (claimed as bilateral leg muscle pain) and the claim for an increased initial rating for a right foot / ankle disability for development.  As the AOJ substantially complied with the May 2017 remand, another remand of those claims is not required.  See Stegall v. West, 11 Vet. App. 268 (1998).  
In May 2017, the Board denied the service connection claims for a lumbar spine disability and a right shoulder disability.  The Veteran appealed those decisions to the U.S. Court of Appeal for Veterans Claims (CAVC or the Court).  In an October 2017 Joint Motion for Partial Remand (JMPR), the parties agreed that the Board erred in finding that VA had satisfied the duty to assist as to those claims.  Specifically, the parties agreed that the Board erred by not obtaining identified private treatment records from the Veteran’s primary care physician, Dr. S.S.  Accordingly, the JMPR requested vacatur of the Board’s May 2017 denials of the service connection claims for a low back disability and a right shoulder disability.  In November 2017, the Court granted the JMPR and remanded those issues to the Board for action consistent with the JMPR.  See Nov. 2017 Order.
In February 2018, the Board notified the Veteran that the service connection claims remanded by CAVC had returned to the Board.  The notice also informed him that he had ninety days from the date of the letter (i.e., until May 2018), or until the Board issued a decision in the appeal, whichever came first, to submit additional argument or evidence.  In April 2018, his attorney requested an extension beyond the ninety days to obtain additional evidence.  In May 2018 correspondence, the Board notified the attorney that it had granted the motion and extended the deadline to submit additional argument or evidence until ninety days from that letter, i.e., by August 2018.  The Veteran’s attorney submitted additional argument and evidence in August 2018.
During the pendency of the increased rating claims on appeal, the evidence of record implicitly raised the issue of entitlement to a TDIU.  See, e.g., VA vocational rehabilitation claim file received in March 2018 (including 2014 finding of serious employment handicap due to service-connected right foot / ankle disability and “uncertain” feasibility determination regarding employment prospects as truck driver; 2014 documents also discuss physical functional impairments due to service-connected right foot / ankle disability); February 2010 VA primary care note (competently finding Veteran’s physical condition and effects of needed medications rendered him unemployable; discussing physical restrictions and impairments); June 2017 VA foot examination (discussing functional impact of service-connected right foot disability); 2010 VA treatment records (expressly discussing how use of prescribed narcotic pain medications for chronic orthopedic pain would impair employment goal of becoming a truck driver; it is unclear to what extent VA providers prescribed such pain medications at least in part for his service-connected right foot / ankle disabilities, as opposed to his other non-service connected orthopedic disabilities, during the appeal period). When a request for a TDIU is made during the pendency of a claim for an increase, whether expressly raised by a veteran or reasonably raised by the record, it is not a separate claim for benefits, but rather an attempt to obtain an appropriate rating for a disability as part of the initial adjudication of the claim.  Rice v. Shinseki, 22 Vet. App. 447, 453-454 (2009).  Thus, the Board finds that the issue of entitlement to a TDIU is inferred as part of the increased initial rating claims on appeal.
The Board has thoroughly reviewed all the evidence in the file.  In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board’s decision, as well as to facilitate review by the Court.  38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995).  Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence).  Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See id.  
Pertinent regulations for consideration were provided to the Veteran in the July 2009 Statement of the Case (SOC) and will not be repeated here in full.  
Service Connection
The service connection claims for a right shoulder disability, a lumbar spine disability, and a disability claimed as transient bilateral muscle pain are denied.
1. Service connection for a right shoulder disability is denied.
The Veteran seeks service connection for a right shoulder disability.  He primarily contends that his current right shoulder disability arose from a documented, March 1982 motor vehicle accident during service.  Alternatively, he contends that his current right shoulder condition is related to a reported in-service right shoulder injury around 1978 or 1979 due to an incident when he was working as a prison guard and broke up a fight.  
Initially, the Board concedes the presence of a current right shoulder disability, to include mild degenerative changes.  However, service connection is unwarranted because the evidence does not show that it is at least as likely as not that this condition was incurred in or is otherwise related to service.  
The Veteran is not entitled to service connection on a presumptive basis under the chronic disease provisions for the following reasons.  First, his service treatment records do not show that chronic right shoulder arthritis was shown as such in service. To the contrary, military medical examinations from the years relatively soon after the spring 1982 motor vehicle accident affirmatively found his musculoskeletal system was normal.  See October 1986 report of medical examination; see also July 1988 report of medical examination.  Had the Veteran indeed chronically injured his right shoulder during the March 1982 motor vehicle accident, it is reasonable to expect that military providers would have noted that in these examination reports from not long after the accident.  The fact that they did not, but rather expressly found his musculoskeletal system was normal, weighs against a finding of an in-service, chronic right shoulder condition.  Second, there is no evidence that chronic right shoulder arthritis manifested to a compensable degree within one year of service. 
Third, the evidence of record does not support the Veteran’s assertions of continuous right shoulder symptomatology since service.  His service treatment records are negative for any right shoulder complaints or symptoms.  An April 1982 service treatment record specifically documented left shoulder and upper thoracic spine complaints after a motor vehicle accident a week and a half prior.  However, it notably did not reference any right shoulder complaints or symptoms. After the accident, he sought treatment numerous times before leaving service in 1990, including for orthopedic complaints. See, e.g., April 1987 note (complaints of pulled muscle in both legs after playing baseball); November 1987 notes (complaints of bilateral foot pain provisionally diagnosed as plantar fasciitis and pes planus); September 1989 note (noting complaints of swollen left ankle).  Thus, he had ample opportunity to raise the issue of chronic shoulder pain, and yet he did not do so. Moreover, military medical examinations from just a few years after the spring 1982 accident make no mention of the accident or residual orthopedic complaints, including right shoulder symptoms.  See October 1986 report of medical examination; see also July 1988 report of medical examination. 
The first references to right shoulder complaints of record are from the time of his July 2007 service connection claim, almost two decades after separation from his last period of active service.  Notably, he did not complain to his private doctor at an earlier point after service, despite complaints and treatment of various other medical issues, including orthopedic problems such as right knee pain, beginning as early as the early-to-mid-2000s.  Had he indeed had continuous right shoulder symptoms since service, it is reasonable to expect that he would have reported such symptoms during this period, when he clearly was willing to make other orthopedic complaints and had the opportunity to receive medical care.  The fact that he did not do so, but rather waited until he filed his 2007 VA compensation claim to first report right shoulder issues, weighs against a finding of continuity of symptomatology since service.  
In summary, the Board agrees with the attorney’s suggestion in the 2018 brief that the Veteran is competent to describe the onset and course of his right shoulder symptoms and to report continuity of symptomatology since service.  However, the Board does not find those contentions credible.
The Board finds that the weight of the evidence does not show that the Veteran’s current right shoulder arthritis began in service or manifested to a compensable degree within one year of service.  Nor does the evidence show continuity of symptomatology since service.  Service connection is therefore unwarranted on a presumptive basis.  See 38 C.F.R. §§ 3.303(b), 3.307, 3.309.
Nor is the Veteran entitled to service connection on a direct basis.  The weight of the most probative and persuasive evidence does not show that his current right shoulder disability was incurred in or is otherwise related to service, including the documented, March 1982 motor vehicle accident, or the reported right shoulder injury in the late 1970s arising from his alleged MOS duties as a prison guard.
Initially, it is undisputed that the Veteran was in a motor vehicle accident around March 1982 during his active service in Greece. See April 1982 service treatment record (noting Veteran had been in a motor vehicle accident a week and a half prior); see also March 2011 buddy statements (credibly corroborating Veteran’s involvement in 1982 motor vehicle accident and subsequent in-service medical treatment).  However, his available service treatment records do not reference right shoulder complaints, diagnoses, or treatment arising from that accident. An April 1982 service treatment record noted that he had been in a motor vehicle accident a week and a half prior and that he complained of left shoulder and thoracic spine pain, among other symptoms; however, this record makes no mention of right shoulder complaints. 
In addition, on a September 2009 release form, the Veteran stated that he was “in shock” after the 1982 accident and that he “still [does not] remember anything about the accident or how long I was in the hospital.”  Thus, he openly acknowledged credibility issues raised by his admittedly unreliable memory of the details of the 1982 accident and subsequent treatment.  In sum, the Board agrees with the attorney’s assertions in the 2018 brief suggesting that the Veteran is competent to report his recollections of the 1982 accident, including his belief that he specifically injured his right shoulder.  However, the Board does not find them credible.
The Board considered the March 2011 buddy statements by veterans who served with the Veteran in Greece and recalled the March 1982 accident.   Both statements generally corroborated the Veteran’s account of the 1982 accident and his subsequent treatment.  However, neither statement specifically referenced any in-service complaints, treatment, or diagnoses of right shoulder issues specifically.  Again, the Board does not dispute that the Veteran incurred some injuries during a documented, relatively serious March 1982 motor vehicle accident during service.  While the March 2011 buddy statements are both competent and credible, the Board affords them minimal probative value to the extent that they do not address the specific issue of an in-service right shoulder injury.  
The Board rejects the attorney’s speculative contention in the 2018 brief that the overall severity of the accident as shown by the evidence of record – including the Veteran’s lay statements, buddy statements, and photographs of damage to the vehicles involved – necessarily shows that the Veteran specifically injured his right shoulder in that accident.  The attorney cites a favorable, 2018 private medical opinion in support of this contention.  The Board will address why it affords this favorable private medical opinion minimal probative value further below in the discussion regarding why the nexus element is unsatisfied. 
The Veteran maintains that he had right shoulder pain soon after the 1982 accident, but did not report it because he wanted to continue serving.  However, the Board does not find this assertion credible because his service treatment records show that he had no qualms about reporting other medical issues after the accident, including various orthopedic issues.  See, e.g., April 1987 note (complaints of pulled muscle in both legs after playing baseball); November 1987 notes (complaints of bilateral foot pain provisionally diagnosed as plantar fasciitis and pes planus); September 1989 note (noting complaints of swollen left ankle).  
In addition, the evidence does not corroborate his account of an in-service right shoulder injury in the late 1970s related to his alleged MOS duties as a prison guard.  Although he is competent to report such in-service injuries, the Board rejects this contention as not credible because it is inconsistent with his verified MOS during that period. Specifically, his service records do not support his contention that his MOS duties during this period involved guarding prisoners or any similar duties.  To the contrary, they show that in the late 1970s, he served as a noncommissioned officer with a field artillery unit and performed duties involving nuclear missile testing, maintenance, and safety.  See, e.g., February 1979 report of medical examination (purpose – nuclear surety physical); September 1979 performance evaluation (describing MOS duties in detail); November 1979 certificate of achievement.  Nor does the lay evidence of record suggest that his MOS during this period had anything to do with corrections or similar work.  See August 2012 VA psychiatry note (Veteran reported MOS involved guarding nuclear weapons); see also March 2011 buddy statement by D.M.S. (stating in early 1980s he and Veteran were missile evaluators for N.A.T.O.). 
In summary, the evidence does not show that it is at least as likely as not that the Veteran incurred a right shoulder disability during service.
Even assuming for the sake of argument the Board were to accept the Veteran’s lay statements regarding in-service right shoulder injuries, service connection still would be unwarranted.  The weight of the most competent and persuasive evidence does not show that it is at least as likely as not that his current right shoulder disability is related to such reported in-service injuries.
The Board affords great probative value to the July 2013 VA examination and medical opinion. The examiner accurately explained that the Veteran was diagnosed with left shoulder bursitis per his service treatment records, and that the current VA examination demonstrated bilaterally symmetrical findings. The examiner also noted that radiographs demonstrated similar findings between each shoulder’s respective degenerative changes. Thus, the examiner competently and persuasively opined that his current right shoulder degenerative changes were more likely than not age-related and not related to the in-service motor vehicle accident, in which service treatment records show he only injured his left shoulder.
In contrast, the Board affords minimal probative value to the August 2018 favorable private medical opinion.  The private examiner stated that he disagreed with the 2017 Board decision’s finding that the Veteran’s current right shoulder disability “cannot have been caused by the [1982 accident].”  The private examiner opined that it was at least as likely as not that the right shoulder was injured in the 1982 accident and caused his current right shoulder disability.  The examiner based this conclusion on the general severity of the 1982 accident, in which the Veteran’s vehicle reportedly flipped multiple times, the “proximity of the right shoulder to the left shoulder,” and back and rib symptoms after the accident noted in service treatment records.  The Board rejects this speculative opinion for the following reasons.  
First, the Board does not dispute that the Veteran’s available service treatment records show that he sustained orthopedic injuries to areas other than the right shoulder, including his left shoulder, during the verified, 1982 accident.  Nor does the Board dispute the Veteran’s corroborated account that this was a relatively serious accident.  See March 2011 buddy statement (reporting car flipped multiple times); see also post-accident photographs received in January 2018 (with accompanying notes by Veteran identifying which damaged car he was in).  However, it does not follow from those facts that it is at least as likely as not (i.e., probability of at least 50 percent) that: (1) he sustained a right shoulder injury specifically during that accident; or (2) his current right shoulder arthritis is related to any such alleged in-service right shoulder injury.  This claim hinges on those specific questions, not whether there is any possibility, no matter how speculative or remote, that his current right shoulder disability may have resulted from the 1982 accident.  The private examiner also distorted the 2017 Board decision’s nexus findings.  The Board did not find then, and does not find now, that the Veteran’s current right shoulder disability “cannot have been caused by” the 1982 motor vehicle accident.  Rather, the Board finds that the weight of the most competent, probative, and persuasive evidence does not show that it is at least as likely as not that his current right shoulder arthritis was incurred in or is otherwise related to service, including the 1982 accident.  
Second, the private examiner stated that he considered the Veteran’s complete claims file.  However, the examiner failed to address the significance of radiographic findings showing symmetrical, mild degenerative changes of the shoulders bilaterally, which the 2013 VA examiner competently and persuasively cited in support of the finding that the current right shoulder disability is more likely than not age-related.  The private examiner offered no explanation for these objective medical findings, or any rebuttal to the 2013 VA examiner’s explanation of the significance of these findings.  In addition, the private examiner failed to explain why reports of medical examinations from 1986 and 1988, i.e., only a few years after the 1982 accident, affirmatively found his musculoskeletal system was normal and made no reference to the 1982 accident or any residual right shoulder issues arising from the accident.  Nor did the private examiner explain the gap of several years between the 1982 accident and the first documented right shoulder complaints in July 2007, i.e., when the Veteran filed his service connection claim.
On balance, the Board affords more probative value to the better-reasoned and more persuasive 2013 negative VA medical opinion than to the speculative, 2018 favorable private medical opinion.  The weight of the most probative and persuasive evidence does not show it is at least as likely as not that the Veteran’s current right shoulder disability is related to service, including the 1982 accident.
The Veteran’s VA treatment records show right shoulder complaints and treatment for chronic pain decades after his separation from his last period of active service.  However, none of his VA treating providers opined or suggested that this condition was related to service in any way.  His private treatment records beginning around the early-to-mid-2000s do not reference right shoulder complaints, treatment, or diagnoses.  Although his private provider noted in 2007 and 2008 that the Veteran was applying for VA disability benefits, the provider did not suggest that his current right shoulder disability (or any other disability) was related to service.
The Board recognizes the Veteran’s contention that his current right shoulder disability is related to service, including the documented 1982 motor vehicle accident, or alternatively, the reported prison incident.  He is competent to report his recollection of in-service event he observed, observable symptoms such as pain, and the onset and course of such symptoms. However, he is not competent to conclude that his current right shoulder disability is related to service because such orthopedic issues are not amenable to lay opinions on etiology.  Therefore, his lay statements are not competent evidence sufficient to establish service connection, contrary to his attorney’s inaccurate contention otherwise in the 2018 brief.  See Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 
The Veteran’s attorney alleged in the 2018 brief that VA’s delay caused by its own purported negligence in failing to timely obtain private treatment records from Dr. S.S. should result in an “adverse presumption” that the absent records would have supported the Veteran’s service connection claims.  The Board rejects this contention, which amounts to a policy or equitable argument of what the law should be, as opposed to a legal argument that accurately describes current law governing veterans’ benefits.  The attorney cited Cromer v. Nicholson, 19 Vet. App. 215, 219 (2005), in which the veteran / appellant made a policy argument that the Court should apply an “adverse presumption” requiring VA to disprove a claimant’s allegation of in-service injury or disease in such cases where service treatment records had been lost or destroyed while in Government control.  In Cromer, the veteran / appellant argued that the Court should adopt such an adverse presumption against VA based solely on general principles of evidence and equity. The Court declined to do so because the appellant’s argument did not apply to the facts of that case.  Therefore, the Court found that it did not need to decide whether it should adopt the “adverse presumption” advanced by the appellant.  Also, the policy and equitable concerns raised by the Cromer appellant do not apply here because Cromer involved missing service records in Government custody due to the 1973 fire at the National Personnel Records Center (NPRC).  In contrast, the attorney’s 2018 argument focused on the separate issue of unavailable private treatment records, which a veteran expressly must authorize VA to request on his or her behalf. (The Board will address the attorney’s contentions regarding VA’s efforts to obtain private treatment records from Dr. S.S. further below in the discussion regarding the duties to notify and assist.)
In conclusion, service connection for a right shoulder condition is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply.  38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 
2. Service connection for a lumbar spine disability is denied.
The Veteran seeks service connection for a lumbar spine disability.  He contends that his current lumbar spine disability arose from a documented motor vehicle accident during service in March 1982.
Initially, the Board concedes the presence of current lumbar spine disabilities, to include degenerative disc disease and degenerative joint disease.  However, service connection is nonetheless unwarranted because the evidence does not show that it is at least as likely as not that these conditions were incurred in or are otherwise related to service.  
The Veteran is not entitled to service connection on a presumptive basis under the chronic disease provisions for the following reasons.  First, there is no competent evidence suggesting that lumbar spine arthritis was shown as such during active service.  To the contrary, military examinations from just a few years after the 1982 accident affirmatively found his spine and musculoskeletal system were normal.  See October 1986 report of medical examination; see also July 1988 report of medical examination.  Had the Veteran indeed chronically injured his lumbar spine during the 1982 accident, it is reasonable to expect that military providers would have noted that in these examination reports from not long after the accident.  The fact that they did not weighs against a finding of an in-service, chronic lumbar spine condition.  Nor is there any evidence that chronic lumbar spine arthritis manifested to a compensable degree within one year of service. 
Nor does the evidence of record support the Veteran’s assertions of continuous lumbar spine symptomatology since service.  His service treatment records are negative for any lumbar spine complaints or symptoms.  Although an April 1982 service treatment record showed thoracic spine and other orthopedic complaints after a motor vehicle accident a week and a half prior, it made no reference to any lumbar spine complaints. After the accident, he sought treatment numerous times before leaving service in 1990, including for orthopedic complaints.  See, e.g., April 1987 note (complaints of pulled muscle in both legs after playing baseball); November 1987 notes (complaints of bilateral foot pain provisionally diagnosed as plantar fasciitis and pes planus); September 1989 note (noting complaints of swollen left ankle).  Thus, he had ample opportunity to raise the issue of chronic lumbar spine pain, and yet he did not do so. Moreover, military medical examinations from the years relatively soon after the spring 1982 accident make no mention of that accident or residual orthopedic complaints, including lumbar spine symptoms.  See October 1986 report of medical examination; see also July 1988 report of medical examination. 
Additionally, there are no references to lumbar spine complaints or symptoms of record until he filed his service connection claim in July 2007, decades after the 1982 accident and many years after separation from his second period of active service. In addition, he saw a private provider for complaints and treatment of various chronic health issues beginning around the early-to-mid-2000s, including orthopedic complaints such as right knee pain; however, these records do not note lumbar spine complaints. Had he indeed had continuous lumbar spine symptoms since service, it is reasonable to expect that he would have reported that during this period, when he clearly was willing to seek treatment for other orthopedic complaints from his private doctor.  The fact that he did not weighs against a finding of continuity of symptomatology since service.  Additionally, during the March 2008 VA examination, the Veteran reported that his low back pain began approximately two and a half years ago. Thus, even by his own statement, he did not have continuity of low back symptoms after service. 
In summary, the attorney was correct when suggesting in the 2018 brief that the Veteran is competent to describe the onset and course of his lumbar spine symptoms and report continuity of symptomatology since service.  However, the Board does not find such contentions credible here for the reasons above.
The Board finds that the weight of the evidence does not show that the Veteran’s current lumbar spine arthritis began in service or manifested to a compensable degree within one year of service.  Nor does the evidence show continuity of lumbar spine symptomatology since service.  Service connection is therefore unwarranted on a presumptive basis.  See 38 C.F.R. §§ 3.303(b), 3.307, 3.309.
Nor is the Veteran entitled to service connection on a direct basis.  The weight of the most probative and persuasive evidence does not show that his current lumbar spine disability was incurred in or is otherwise related to service, including the verified March 1982 motor vehicle accident.
As discussed above regarding the right shoulder claim, the Board does not dispute that the Veteran was in a relatively serious motor vehicle accident in March 1982 during active service in Greece.  Nor does the Board dispute that he had treatment for various orthopedic complaints soon after the accident, including thoracic spine and left shoulder symptoms.  However, his available service treatment records are negative for any reference to lumbar spine complaints, diagnoses, or treatment arising from that accident. 
The Board considered the March 2011 buddy statements by other veterans who served with the Veteran in Greece at the time of the 1982 accident.   In one statement, D.M.S. stated that in March 1982, the Veteran was involved in an automobile accident in which he injured his back.  He also reported that after the accident, the Veteran spent several days in the Souda Bay Naval Clinic, and that he complained of severe back pain after he was discharged.  However, this statement was vague to the extent that it did not specify recollections of the Veteran’s low back pain complaints, symptoms, or treatment during service.  In another 2011 buddy statement, W.R.G. also generally corroborated the Veteran’s reports of the 1982 accident and subsequent treatment; however, he did not specifically reference any recollection of the Veteran’s low back complaints, symptoms, or during service. While the 2011 buddy statements are competent and credible, the Board affords them minimal probative value to the extent that they do not address the specific issue of an in-service lumbar spine injury.  
The Board agrees with the attorney’s assertions in the 2018 brief suggesting that the Veteran is competent to report his recollections of the 1982 accident, including his belief that he injured his lumbar spine in that accident.  However, as discussed above, the Veteran expressly stated that he was “in shock” after the 1982 accident and that he “still [does not] remember anything about the accident or how long I was in the hospital.”  See September 2009 release (comments).  Thus, he expressly has acknowledged credibility issues raised by his own limited memory of the 1982 accident and subsequent treatment.  
The Veteran maintains that he had back pain after the 1982 accident but did not report it because he wanted to continue serving.  However, the Board does not find this assertion credible because his service treatment records show that he had no qualms about reporting other medical issues after the accident, including orthopedic issues.  See, e.g., April 1987 note (complaints of pulled muscle in both legs after playing baseball); November 1987 notes (complaints of bilateral foot pain provisionally diagnosed as plantar fasciitis and pes planus); September 1989 note (noting complaints of swollen left ankle).  
The Board also rejects the attorney’s contention in the 2018 brief that the overall severity of the accident as shown by the evidence of record – including the Veteran’s lay statements, buddy statements, and photographs of the damaged vehicles involved – necessarily means that he must have specifically injured his lumbar spine during that accident.  In support of this argument, the attorney cited a favorable 2018 medical opinion addressing this issue.  The Board will address this private opinion further below regarding why the nexus element is unsatisfied.
In summary, the evidence does not show that it is at least as likely as not that the Veteran incurred a lumbar spine disability during service.
Even assuming for the sake of argument the Board were to accept the Veteran’s lay statements that he injured his lumbar spine during service, service connection still would be unwarranted.  The weight of the most competent and persuasive evidence does not show that it is at least as likely as not that his current lumbar spine disability is related to service.
The Board affords great probative value to the March 2008 VA examination and medical opinion. The 2008 VA examiner considered the Veteran’s reported medical history regarding the 1982 motor vehicle accident.  The examiner accurately explained that at that time, he complained of upper thoracic spine pain radiating to the left shoulder, as opposed to low back pain.  The Veteran reported during the VA examination that he had not had any specific low back treatments and that his current low back pain began approximately two and a half years ago. Thus, the examiner competently and persuasively opined that the Veteran’s current lumbar spine degenerative joint disease was less likely than not due to service.  The examiner stressed the lack of documentation of low back problems during service and the Veteran’s own report of current back complaints beginning many years after service.
In contrast, the Board affords minimal probative value to the speculative and conclusory August 2018 favorable private medical opinion.  The private examiner opined that the Veteran sustained an injury to “the entirety of the spine” during the 1982 accident, and that it was at least as likely as not that his current lumbar spine disability was caused by the 1982 accident.  The private examiner based these conclusions on the severity of the 1982 accident as shown by photographs and other evidence.  The private examiner also essentially reasoned that the Veteran reported continuous lumbar spine symptoms such as pain over many years, with varying degrees of severity.  The private examiner suggested that the Veteran’s current lumbar spine disability is a progression of the reported in-service lumbar spine disability, which has increased in severity over time. The Board does not find this speculative opinion probative or persuasive for the following reasons.  
First, the Board does not dispute that the Veteran’s available service treatment records show that he sustained orthopedic injuries to areas other than the lumbar spine, including the thoracic spine and left shoulder, during the 1982 motor vehicle accident.  Nor does the Board dispute the Veteran’s corroborated account that this was a relatively serious accident, as discussed above regarding the right shoulder claim.  However, it does not necessarily follow from those facts that it is at least as likely as not (i.e., probability of at least 50 percent) that: (1) he sustained a lumbar spine injury specifically during that accident; or (2) his current lumbar spine arthritis is related to any such reported in-service lumbar spine injury.  This claim hinges on those specific questions, as opposed to whether there is any possibility, no matter how speculative or remote, that the Veteran’s current lumbar spine disability may have resulted from the 1982 accident.  
Second, the examiner primarily based the favorable findings regarding an in-service lumbar spine disability and continuity of symptomatology on the Veteran’s subjective lay reports about the onset and course of his symptoms.  However, the Board does not find those lay statements credible for the reasons explained fully above.  Also, the mere fact that current medical evidence shows evidence of a progressive, worsening lumbar spine condition does not necessarily mean that the current lumbar spine disability began during or has continued since service.  The private examiner did not explain how such medical evidence of a progressive, worsening condition temporally links the Veteran’s current lumbar spine disability to service generally, or the 1982 accident specifically.
Third, the private examiner stated that he considered the Veteran’s complete claims file.  However, he failed to explain why reports of medical examination from 1986 and 1988, i.e., only a few years after the 1982 accident, affirmatively found his spine and musculoskeletal system were normal, and made no reference to the 1982 accident or any lumbar spine residuals from that accident.  The private examiner also did not explain the gap of several years between the 1982 accident and the first documented reference to lumbar spine complaints several years later in July 2007, i.e., when he filed his service connection claim, or even the Veteran’s own admission in 2008 that his low back pain began approximately two and a half years earlier, i.e., 2005.
On balance, the 2008 negative VA medical opinion is more probative and persuasive than the speculative, 2018 favorable private medical opinion.  
The Veteran’s VA and private treatment records show lumbar spine complaints and ongoing treatment for chronic lumbar spine pain beginning several years after the 1982 accident and his separation from his last period of active service.  However, none of his treating providers opined or suggested that this condition was related to service in any way.  Notably, although his private medical provider noted in 2007 and 2008 that he was applying for VA disability benefits, this provider did not opine or suggest that his current lumbar spine disability (or any other disability) was related to service.
The Board recognizes the Veteran’s contention that his current lumbar spine disability is related to service, including the verified 1982 motor vehicle accident.  He is competent to report recollections of in-service events he witnessed, observable symptoms such as pain, and the onset and course of such symptoms. However, he is not competent to conclude that his current lumbar spine condition is related to service because such orthopedic issues are not amenable to lay opinions on etiology.  Therefore, his lay statements are not competent evidence sufficient to establish service connection, contrary to his attorney’s contention otherwise in the August 2018 brief.  Kahana, supra; Jandreau, supra.
The attorney alleges in the 2018 brief that VA’s delay, caused by its own purported negligence, in failing to timely obtain private treatment records from Dr. S.S. should result in an “adverse presumption” that the absent records would have supported the Veteran’s service connection claims.  The Board rejects this contention for the reasons explained fully above regarding the right shoulder claim.  
In conclusion, service connection for a lumbar spine disability is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply.  38 U.S.C. § 5107; Gilbert, supra.
3. Service connection for a disability manifested as transient bilateral muscle pain is denied.
The Veteran claims service connection for a disability claimed as bilateral leg muscle pain. He primarily attributes this claimed current disability to a 1982 motor vehicle accident during his active service in Greece.  See July 2009 NOD.
After a full review of the record, the Board finds that the claim must be denied. The Veteran has not been diagnosed with any current bilateral leg muscle condition (excluding his service-connected right foot and ankle disabilities).  Nor is there any competent evidence showing that his reported bilateral leg muscle pain has resulted in functional impairment in earning capacity. Accordingly, he has no current disability for which service connection may be granted. 
The Board affords great probative value to the June 2017 VA muscle injury examination.  The examiner competently and persuasively found that the Veteran has no current diagnosis or pathology for his reported transient leg muscle pain because the condition had resolved.  The examiner thoroughly considered the Veteran’s reported medical history and objective medical findings.  Also, the examiner’s finding is consistent with the VA and private outpatient treatment records, which are negative for any references to current bilateral leg muscle complaints, treatment, or diagnoses (other than those related to his service-connected right foot and ankle disabilities).  The examiner’s finding also is consistent with the Veteran’s 2014 Board hearing testimony in which he acknowledged that medical providers have not diagnosed a condition for his complaints of bilateral leg muscle pain.
In contrast, the Board affords minimal probative value to the 2018 private medical examiner’s conclusory suggestion that the Veteran’s complaints of bilateral leg muscle pain are explained by lumbar radicular pain.  To the extent that the private examiner suggested that the Veteran has a current diagnosis of lower extremity lumbar radiculopathy, the Board rejects that conclusory finding.  Indeed, the private examiner cited no objective medical evidence in support of this finding. Moreover, this finding is internally inconsistent with objective examination findings noted elsewhere in the 2018 private medical report, including the finding that the left lower extremity was neurologically intact on examination, and the finding that sensation was intact about the lower extremities on examination.  In addition, this diagnosis is inconsistent with the weight of the medical and lay evidence of record weighing against a finding of current lumbar radiculopathy at any point during the appeal period.  See, e.g., March 2008 VA examination (noting there were no significant radiating low back symptoms into the buttocks or legs); March 2009 VA podiatry consult (noting Veteran affirmatively denied numbness or tingling of his feet); September 2014 VA primary care note (noting complaints of chronic lumbar spine pain but no radiation of pain to the legs; finding negative SLR [straight leg raise] on examination); November 2016 VA physical therapy note (diagnosing low back pain without sciatica); August 2017 VA primary care note (noting complaints of back pain; Veteran affirmatively denied numbness or tingling to the extremities); but see July 2017 VA home telehealth note (noting complaints of leg and feet pain, numbness, and tingling, which provider suggested may be related to non-service connected diabetes; VA provider notably did not diagnose lumbar radiculopathy, or suggest that such reported symptoms may be signs of lumbar radiculopathy).
The Board considered Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding U.S. Court of Appeals for Veterans Claims erred as matter of law in finding veteran’s pain alone, absent specific diagnosis or otherwise identified disease or injury, could not constitute a disability under 38 U.S.C. § 1110) and other relevant authorities. These authorities do not support a finding that the Veteran here has a current bilateral leg disability. He notably has not specified how he believes his subjective bilateral leg muscle symptoms such as pain (other than symptoms that may be related to his service-connected right foot and ankle disabilities) have resulted in specific functional impairments in earning capacity.  Cf. Mitchell v. Shinseki, 25 Vet. App. 32, 38, 43 (2011) (stating, “pain itself does not rise to the level of functional loss;” “pain must affect some aspect of the normal working movements of the body...in order to constitute functional loss;” and “painful motion alone is not [the equivalent of] limited motion” (internal quotation marks omitted)); Thompson v. McDonald, 815 F.3d 781, 786 (Fed. Cir. 2016) (disability occurs “if a veteran cannot perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance” (citing 38 C.F.R. § 4.40 )); Read v. Shinseki, 651 F.3d 1296, 1301 (Fed. Cir. 2011) (“disability” in VA regulations is “generally associated with the veteran’s inability to perform certain acts”). 
Even assuming for the sake of argument that the Veteran subjectively experiences bilateral leg muscle pain, there is no objective medical evidence of record that any such current symptoms have resulted in functional impairment in earning capacity. The Federal Circuit clarified in Saunders:
We do not hold that a veteran could demonstrate service connection simply by asserting subjective pain to establish a disability….To establish the presence of a disability, a veteran will need to show that…pain reaches the level of a functional impairment of earning capacity. The policy underlying veterans compensation to compensate veterans whose ability to earn a living is impaired as a result of their military service supports the holding we reach today.
The presence of a disability at any time during the claim process can justify a grant of service connection, even when the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, Congress specifically has limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability.  Thus, where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 
Finally, to the extent that the Veteran may contend that his current diagnoses for right and left knee disabilities are the basis of this service connection claim for a condition claimed as bilateral leg muscle pain, the Board notes that he filed separate service connection claims for right and left knee disabilities in September 2011, which the AOJ denied in an August 2013 decision.  Those issues are not presently on appeal and the Board therefore will not address them further.
Therefore, service connection for a bilateral leg disability claimed as transient muscle pain is unwarranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert, supra. 
Increased Initial Ratings
1. Entitlement to an initial disability rating for a right foot disability under DC 5284 greater than 10 percent prior to July 31, 2014 and greater than 30 percent thereafter is denied.
The AOJ assigned initial disability ratings of 10 percent prior to July 31, 2014 and 30 percent thereafter under DC 5284 (foot injuries, other) for the Veteran’s service-connected right foot disability.  He seeks higher initial ratings.  
Initially, the Board finds that rating the service-connected right foot disability under DC 5284 by analogy is appropriate here.  This disability primarily has manifested as heel pain and tenderness to palpation of the plantar aspect found to be residuals of a 1972, in-service fall injury.  Such symptoms are not associated with a specific DC in the Rating Schedule. Accordingly, the Board must consider an appropriate DC by analogy that best represents his overall disability picture. 
The assignment of a particular DC is “completely dependent on the facts of a particular case.” Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a DC by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992).
VA’s Office of General Counsel (OGC) has determined that DC 5284 is a general DC under which a variety of foot injuries may be rated; that some injuries to the foot, such as fractures and dislocations for example, may limit motion in the subtalar, midtarsal, and metatarsophalangeal joints; and that other injuries may not affect range of motion. Thus, OGC concluded that, depending on the nature of the foot injury, DC 5284 may involve limitation of motion. See VAOPGCPREC 9-98.
DC 5284 does not apply to the eight foot conditions that are specifically listed under § 4.71a.  See Copeland v. McDonald, 27 Vet. App. 333, 338 (2015). The plain meaning of the word “injury” limits the application of DC 5284 to disabilities resulting from actual injuries to the foot, as opposed to disabilities caused by degenerative conditions.  See Yancy v. McDonald, 27 Vet. App. 484 (2016) (rejecting an argument that DC 5284 is a “catch-all provision” and holding that the Secretary’s interpretation of “injury” was entitled to deference). However, unlisted foot conditions still may be rated under DC 5284 by analogy. Id. 
Here, the Veteran’s service-connected right foot disability (attributed to a 1972, in-service foot injury due to a fall) primarily has manifested as right heel pain, tenderness to palpation of the plantar aspect, and functional impairments such as difficulty with prolonged walking, running, and standing.  Such right foot symptoms and impairments that medical professionals competently have linked to the service-connected right foot disability are not explicitly listed in the rating schedule. Nor are such symptoms and impairments reasonably analogous to the foot conditions listed in 38 C.F.R. § 4.71a, DCs 5277-5283 (i.e., weak foot, claw foot, anterior metatarsalgia, hallux valgus, hallux rigidus, hammer toe, or malunion or nonunion of the tarsal or metatarsal bones). See Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006). The Board recognizes that the March 2008 VA examiner found mild pes planus upon examination of the right foot.  However, DC 5276 (flat feet) also is not reasonably analogous to the service-connected right foot disability because no medical provider, including the 2008 VA examiner who noted this condition, suggested that it was a symptom or residual of the service-connected right foot disability due to an in-service fall injury.   See Stankevich, supra. 
In contrast, the Board finds that DC 5284 is most closely analogous to the nature of the Veteran’s service-connected right foot disability.  The 2008 VA examiner competently and expressly described the service-connected right foot disability as manifesting primarily as plantar and heel pain attributable to an in-service fall injury.  This characterization of the nature of this disability is consistent with the 2017 VA examiner’s competent diagnosis of the disability as a right foot “injury.”  In summary, after considering all potentially applicable DCs, the evidence shows that the term other foot “injuries” as used in DC 5284 is most closely analogous to the specific nature of the Veteran’s service-connected right foot disability throughout the appeal period.  See Yancy, supra.  
For the reasons explained below, the Board finds that entitlement to higher, initial ratings for the service-connected right foot disability under DC 5284 are denied as to both stages on appeal.
A. Prior to July 31, 2014
Prior to July 31, 2014, the AOJ assigned an initial, 10 percent disability rating under DC 5284 (foot injuries, other) for the Veteran’s service-connected right foot disability.  The Veteran and his prior representative framed this as an earlier effective date issue in a January 2018 statement.  However, he essentially seeks a higher initial rating throughout the appeal period prior to July 31, 2014.
A higher, 20 percent rating under DC 5284 is warranted for a moderately severe foot injury, and a higher, 30 percent rating is warranted for a severe foot injury.  38 C.F.R. § 4.71a, DC 5284.  The terms “mild,” “moderate,” “moderately severe,” and “severe” are not defined in the rating schedule, and the Board must thoroughly evaluate the evidence to the degree that its decisions are equitable and just rather than applying a mechanical formula. 38 C.F.R. § 4.6. The adjudicator should consider examiners’ use of descriptive terminology such as mild, moderate, or severe; however, examiners’ use of such terminology is not binding.
After a full review of the record, the Board finds that the evidence does not warrant an initial rating greater than 10 percent under DC 5284 at any point prior to July 31, 2014.  During this period, the Veteran’s service-connected right foot disability manifested as symptoms and impairments approximating no worse than a moderate right foot injury, as shown by: subjective reports of right heel pain exacerbated with prolonged walking but alleviated with good shoes and rest; tenderness to palpation along the plantar aspect; plantar fasciitis; and functional impairments on activities such as running. See 2008 and 2013 VA examinations.  
The Board recognizes that the Veteran subjectively feels his service-connected right foot disability was of great severity during this period.  However, the Board affords more probative value to the 2013 VA examiner’s description of the right foot disability as moderate.  The Board finds that a medical professional is more competent than a lay person to assess the overall clinical severity of an orthopedic disability based on a comprehensive assessment of both subjective symptoms and objective medical evidence.  
On balance, at no point prior to July 31, 2014 did the Veteran’s service-connected right foot disability approximate a moderately severe foot injury.  Thus, a higher initial rating than 10 percent under DC 5284 is unwarranted during this period.
The Board considered whether any other DCs apply prior to July 31, 2014 to warrant higher and/or separate disability ratings, and finds that they do not. Specifically, there was no competent medical evidence during this period of symptoms or impairments approximating bilateral weak foot (DC 5277), claw foot (pes cavus) (DC 5278), anterior metatarsalgia (Morton’s disease) (DC 5279), hallux valgus (DC 5280), hallux rigidus (DC 5281), hammer toes (DC 5282), or malunion or nonunion of the tarsal or metatarsal bones (DC 5283).  See 2008 and 2013 VA examinations.  While the 2008 VA examiner found evidence of mild, right foot pes planus, neither the 2008 VA examiner nor any other competent medical providers suggested that this condition was a symptom of the service connected right foot disability. Thus, DCs 5276 through 5283 do not apply. 
In summary, a higher initial rating than 10 percent under DC 5284 is unwarranted at any point prior to July 31, 2014.
B. Since July 31, 2014
The AOJ assigned a 30 percent initial disability rating from July 31, 2014 under DC 5284 (foot injuries, other) for the right foot component of the Veteran’s service-connected right foot / right ankle disability.  To warrant a higher, 40 percent rating under this DC, the evidence must show “actual loss of use of the foot.” 38 C.F.R. § 4.71a, DC 5284 (note).  The Veteran does not appear to contend and the competent medical evidence does not show that his service-connected right foot disability has manifested as or approximated actual loss of use of the foot at any time since July 31, 2014. See, e.g., June 2017 VA examination; May 2018 private orthopedic examination.  The Board recognizes that he subjectively feels his service-connected right foot disability has been of great severity during this period.  However, he notably does not assert that this disability has manifested as or approximated actual loss of use of the foot at any relevant time. In summary, the Board finds that a higher initial rating of 40 percent under DC 5284 is unwarranted from July 31, 2014.
The Board considered whether any other DCs apply since July 31, 2014 to warrant higher and/or separate disability ratings, and finds that they do not (excluding the separate, 20 percent rating from July 31, 2014 that the AOJ assigned for the right ankle component of this disability under DC 5271, which the Board will address further below). Specifically, there is no competent medical evidence of bilateral weak foot (DC 5277), claw foot (pes cavus) (DC 5278), anterior metatarsalgia (Morton’s disease) (DC 5279), hallux valgus (DC 5280), hallux rigidus (DC 5281), hammer toes (DC 5282), or malunion or nonunion of the tarsal or metatarsal bones (DC 5283).  No competent medical providers suggested that his right foot pes planus noted in the 2008 VA examination was a symptom of his service-connected right foot disability. Thus, DCs 5276 through 5283 do not apply. 
In conclusion, entitlement to an initial disability rating for a service-connected right foot disability greater than 10 percent prior to July 31, 2014 and greater than 30 percent thereafter under DC 5284 is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Gilbert, supra.  Finally, neither the Veteran nor his representative raised any other issues; nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319, *8-9 (Vet. App. March 17, 2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

2. Entitlement to a separate, initial compensable rating prior to July 31, 2014 for the right ankle component of the service-connected right foot / right ankle disability is denied.
Initially, the Board fully explained above why it finds that this sub-issue is presently on appeal as part of the broader appellate issue of entitlement to a higher initial rating for the service-connected right foot / right ankle disability throughout the appeal period beginning in July 2007.  The AOJ chose to assign the separate rating as of the date of the Veteran’s testimony to the Board in July 2014, considering that as an informal claim for an increase.  However, as discussed more fully above, the question of higher and/or separate ratings had always been part of the appeal.  The Board will look at all the evidence prior to July 2014 to determine when it was shown a separate rating for the ankle was warranted.  
After a full review of the record, the Board finds that a separate, initial compensable disability rating for the right ankle component of the service-connected right foot / right ankle disability is unwarranted at any point prior to July 31, 2014.  The service-connected right ankle disability manifested as no worse than complaints of pain mildly exacerbated with prolonged walking and alleviated with wearing good shoes and rest, as well as mild soft tissue swelling.  However, at no point during this period did the right ankle disability manifest as or approximate moderate or marked limited motion, right ankle ankylosis, right subastragalar or tarsal joint ankylosis, malunion of the os calcis or astragalus, or astragalectomy.
First, there is no competent medical evidence showing that the right ankle component of the service-connected right foot / right ankle disability manifested as symptoms approximating either moderate or marked limited motion of the right ankle at any point prior to July 31, 2014.  See March 2008 VA examination (noting subjective complaints of pain with “mild” exacerbation with prolonged walking; alleviating factors were wearing good shoes and rest; finding no significant pain to palpation around the ankle upon examination; dorsiflexion was from 0 to 15 degrees and plantar flexion was to 45 degrees; noting Veteran was able to do a toe raise from standing; examiner found remaining examined aspects of right foot and ankle were within normal limits); see also March 2009 VA podiatry note (finding full range of motion with no pain of the ankle joint bilaterally); June 2011 VA primary care note (no range of motion limitations noted upon examination of the ankles). To the contrary, the 2008 VA examination shows that at worst, the right ankle disability manifested as normal plantar flexion and dorsiflexion limited to only 75 percent of normal range of motion.  See 38 C.F.R. § 4.71a, Plate II (indicating normal ankle dorsiflexion is to 20 degrees and normal ankle plantar flexion is to 45 degrees).  Such limitations could be classified as mild or slight, at best.
Second, there is no competent medical evidence showing right ankle ankylosis (DC 5270), ankylosis of the subastragalar or tarsal joint (DC 5272), malunion of the os calcis or astragalus (DC 5273), or astragalectomy (DC 5274) at any point during this period.  See 2008 and 2013 VA examinations; see also generally VA and private outpatient treatment records (negative for any reference to these conditions at any point during the appeal period).  Nor does the Veteran appear to contend that any of those right ankle conditions existed during this period.  Thus, none of those DCs apply to warrant a separate, initial compensable rating for the right ankle component of the service-connected right foot / right ankle disability at any point prior to July 31, 2014.
To the extent that the Veteran had right ankle pain with walking during this period, such symptoms and impairments already are contemplated by the currently assigned, 10 percent rating prior to July 31, 2014 for the service-connected right foot / right ankle disability under DC 5284.  Therefore, the Board finds that assigning a separate, compensable rating for that symptom would constitute impermissible pyramiding. Esteban v. Brown, 6 Vet. App. 259, 262 (1994) (holding separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not “duplicative of or overlapping with the symptomatology” of the other).  
The Board recognizes that the Veteran subjectively feels his service-connected right ankle disability has been of great severity throughout the appeal period.  However, the Board affords more probative value to VA examinations and other medical evidence summarized.  The Board finds that medical professionals are more competent than lay people to assess the overall clinical severity of an orthopedic disability based on comprehensive assessments of subjective symptoms and objective medical evidence.  
In summary, entitlement to a separate, initial compensable rating prior to July 31, 2014 for service-connected residuals of a right ankle injury is denied.  As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. Gilbert, supra.  Finally, neither the Veteran nor his representative raised any other issues; nor have any other issues been reasonably raised by the record. See Doucette, supra.
3. Entitlement to an initial disability rating greater than 20 percent since July 31, 2014 for a service-connected right ankle disability is denied.
The AOJ assigned the Veteran an initial, separate compensable rating of 20 percent from July 31, 2014 under DC 5271 (limitation of ankle motion) for the right ankle component of the service-connected right foot / right ankle disability.  
Initially, the Veteran’s primary contention does not appear to be that he is entitled to a higher initial rating from July 31, 2014 under DC 5271 for his service-connected right ankle disability.  However, the Board finds that this sub-issue is on appeal because the AOJ led him to believe that this issue was part of the broader appellate issue of entitlement to an increased, initial rating for the right ankle component of the service-connected right foot / ankle disability.  See November 2017 rating decision (assigning separate, 20 percent rating for the right ankle component of the service-connected right foot / ankle disability from July 31, 2014 under DC 5271; “This decision represents a partial grant of the benefits sought on appeal for this issue as you were not awarded the maximum benefit provided by the rating schedule. The claim is still considered to be in appellate status and further processing will continue unless you advise us that you are now satisfied with this decision.”); see also November 2017 SSOC (denying entitlement to a separate rating greater than 20 percent from July 31, 2014 for the right ankle component of the service-connected right foot / right ankle disability).  The Board’s adjudication of this sub-issue does not prejudice the Veteran because in the November 2017 SSOC, the AOJ adjudicated this sub-issue as part of the broader increased initial rating appeal and gave the Veteran the impression that the issue remained on appeal.  Also, he did not explicitly advise the AOJ that he was satisfied with the November 2017 rating decision’s assignment of the separate, 20 percent rating under DC 5271 from July 31, 2014.  Therefore, the Board finds that this sub-issue is on appeal.
After a full review of the record, the Board finds that an initial disability rating greater than 20 percent for the right ankle component of the service-connected right foot / right ankle disability is unwarranted at any point since July 31, 2014.  
First, a higher initial rating is unwarranted under DC 5271.  The Veteran already has been assigned the highest schedular rating available using this DC.  
Second, there is no competent medical evidence at any relevant time showing symptoms comparable to right ankle ankylosis (DC 5270), ankylosis of the subastragalar or tarsal joint (DC 5272), malunion of the os calcis or astragalus (DC 5273), or astragalectomy (DC 5274).   See June 2017 VA examination (affirmatively finding no ankylosis of the right ankle and no malunion of the os calcis; no right ankle surgeries noted); see also generally VA and private outpatient treatment records (negative for any reference to these conditions at any relevant time). Nor does the Veteran appear to contend that any of those specific right ankle conditions have manifested during this period.  Thus, those DCs applicable to ankle disabilities do not apply here to warrant higher or separate ratings for the right ankle component of the service-connected right foot / right ankle disability at any point from July 31, 2014.
The Board recognizes that the Veteran subjectively feels that his service-connected right ankle disability has been of great severity throughout the appeal period.  However, the Board affords more probative value to the 2017 VA examination, which competently and persuasively showed that this disability did not manifest as symptoms that would warrant a higher or separate rating under other potentially applicable DCs.  The Board finds that a medical professional is more competent than a lay person to assess the overall clinical severity of an orthopedic disability based on a comprehensive assessment of both subjective symptoms and objective medical evidence.  
In conclusion, entitlement to an initial disability rating greater than 20 percent from July 31, 2014 for the right ankle component of the service-connected right foot / right ankle disability is denied.  As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. Gilbert, supra.  Finally, neither the Veteran nor his representative raised any other issues; nor have any other issues been reasonably raised by the record. See Doucette, supra.
Duties to Notify and Assist
1. VA satisfied the duty to assist the Veteran through attempts to obtain all available, identified private treatment records from Dr. S.S.
As discussed above, in an October 2017 JMPR, the parties agreed that the Board erred in its 2017 denials of service connection claims for a low back disability and a right shoulder disability when it found that VA had satisfied the duty to assist as to those claims.  Specifically, the parties agreed that the Board erred by failing to obtain private treatment records from the Veteran’s primary care physician, Dr. S.S.  Accordingly, the parties concluded that a remand was required for the Board to instruct the AOJ to undertake appropriate actions to obtain those private treatment records.  The Court entered a November 2017 Order granting the JMPR and remanded those service connection claims to the Board for action consistent with the JMPR.  However, the Board finds that yet another remand to request these private treatment records is not necessary for the following reasons.
In January 2018 – after the November 2017 CAVC Order, but before those issues returned to the Board from CAVC in February 2018 – the Veteran filed a statement reiterating his contentions regarding the pending, post-CAVC remand service connection claims for low back and right shoulder disabilities.  He also submitted a release noting private treatment by Dr. S.S.  It appears that the AOJ treated the January 2018 statement as new service connection claims for those disabilities.  Thus, the AOJ began to develop those claims, including re-requesting all identified private treatment records from Dr. S.S. from January 1990 through December 2017.  See February 2018 records request.  In March 2018, in response to the AOJ’s request, Dr. S.S.’s office submitted the available private treatment records, which were from approximately the late 1990s through the mid-2010s.  In an August 2018 brief, the Veteran’s attorney stated that Dr. S.S.’s office reported that the Veteran’s older treatment records had been destroyed recently, “mere months before VA made its post-remand [i.e., 2018] request.”  Thus, the Board finds that yet another, third Board remand to re-request any outstanding private treatment records from this provider would be futile.  The Board is satisfied that all presently available private treatment records from Dr. S.S. are of record.
In a 2018 brief, the Veteran’s attorney alleges that VA is to blame for the fact that the identified, older private treatment records from Dr. S.S. are unavailable because that provider destroyed those records in the months soon before the AOJ’s 2018 records request.  The attorney attributes the recent destruction of these records to “VA’s delay caused by its negligence in failing to timely obtain the records….”  The Board rejects these bald allegations as disingenuous and baseless because they completely distort the record.  The timeline of events summarized below demonstrates the Veteran’s multiple opportunities during the pendency of these claims, at the AOJ and the Board levels, to cooperate in authorizing the AOJ to request the identified private treatment records from Dr. S.S.:
•	August 2007 VCAA notice: The AOJ acknowledged the Veteran’s July 2007 service connection claims for lumbar spine and right shoulder disabilities (among other claims).  This notice expressly discussed the evidence needed to substantiate the claims and the procedures for the AOJ to request medical records for him.  The notice expressly referenced an attached VA Form 21-4142, Authorization and Consent to Release Information (release form), and explained that the Veteran’s return of this form was needed to authorize the release of information from his doctors.
 

•	September 2009: The Veteran submitted a completed release form identifying a military medical provider.  (However, at no point before August 2014 did he submit another completed release form identifying pertinent treatment other non-VA providers, including Dr. S.S.)

•	May 2013 VCAA notice (regarding other compensation claims) clearly explained the procedures for submitting releases needed for the AOJ to request medical records on his behalf.

•	August 2014: The AOJ received a completed release form from the Veteran identifying private provider Dr. S.S.  The Veteran did not specify the dates of treatment or disabilities that Dr. S.S. treated.

•	October 2014 Board remand of service connection claims for low back and right shoulder disabilities: The Board instructed the AOJ to attempt to obtain the identified private treatment records from Dr. S.S.

•	December 2014 correspondence from AOJ to the Veteran: Pursuant to the October 2014 Board remand, the AOJ asked Veteran to submit a completed release form needed for the AOJ to attempt to obtain identified Dr. S.S. private treatment records from 1990 to the present.

•	December 2014 report of general information: In response to December 2014 correspondence from the AOJ, the Veteran reported that Dr. S.S. had sent VA private treatment records.  However, the Veteran did not submit a release form that would have authorized the AOJ to attempt to obtain these records as instructed in the AOJ’s December 2014 correspondence.  Release forms expire after a certain time period, so nothing further could be done without the Veteran’s cooperation in providing another release.

•	January 2016 Board remand of service connection claims for low back and right shoulder disabilities, yet again: The Board instructed the AOJ to attempt to obtain the identified private treatment records from Dr. S.S.  The remand explained that the Veteran reported in December 2014 that Dr. S.S. already had submitted the outstanding private treatment records to VA; however, no medical records from that provider were available for review.

•	February 2016 correspondence from AOJ to Veteran: Pursuant to the January 2016 Board remand, the AOJ asked the Veteran, yet again, to submit a completed release form needed for the AOJ to request the identified Dr. S.S. private treatment records from 1990 to the present.

•	March 2016: The Veteran submitted some private treatment records from Dr. S.S. from approximately the mid-2000s.  However, he notably failed to submit a completed release form in response to the AOJ’s February 2016 correspondence, which would have authorized the AOJ to request all complete, available private treatment records from Dr. S.S., including any existing records from before the mid-2000s. 

•	May 2017 Board decision denying service connection claims for low back and right shoulder disabilities and finding VA satisfied the duty to assist.

•	October 2017 JMPR and November 2017 CAVC Order granting JMPR.

•	January 2018 statements: The Veteran submitted statements about his pending, post-CAVC remand service connection claims for low back and right shoulder disabilities.  He also submitted completed release form noting treatment by Dr. S.S. from January 1990 to December 2017.

•	February 5, 2018 notification letter: The Board notified the Veteran that it had received his post-CAVC remand claims.

•	February 26, 2018: The AOJ requested private treatment records from Dr. S.S. from January 1990 to December 2017, as authorized and identified in the January 2018 release.

•	March 2018: Dr. S.S.’s office submitted available private treatment records from approximately the late 1990s through the mid-2010s in response to the AOJ’s February 2018 records request.

•	August 2018 brief: The Veteran’s attorney stated that Dr. S.S.’s office reported that it had destroyed the Veteran’s early treatment records recently, “mere months before VA made its post-remand [2018] request.”  He blames VA’s alleged “negligence” for the unavailability of those destroyed records.
VA's duty to assist is not always a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  Rather, the Veteran must cooperate in obtaining the evidence necessary to adjudicate the claim.  See, e.g., 38 C.F.R. §§ 3.159(c) (requiring claimant to "cooperate fully with VA's efforts" to obtain both VA and non-VA medical records).  Here, as shown by the timeline of events detailed above, the Veteran had more than ample notice of the procedures for authorizing the AOJ to request private treatment records on his behalf since as early as the 2007 VCAA notice.  He also had more than ample opportunity to submit the releases needed to authorize the AOJ to request his complete private treatment records from Dr. S.S., including well before that provider’s office reported in 2018 that it recently had destroyed some earlier treatment records.  
The Board recognizes that the AOJ failed to request private treatment records upon receipt of the Veteran’s original, August 2014 release that first identified Dr. S.S.  However, the Board addressed that specific duty to assist deficiency through two subsequent remands.  See October 2014 and January 2016 Board remands; see also December 2014 and February 2016 AOJ correspondence to Veteran issued pursuant to the 2014 and 2016 Board remands, both of which expressly requested completed releases needed for the AOJ to request private treatment records since 1990 from Dr. S.S. 
In summary, to the extent that some Dr. S.S. private treatment records from the early 1990s are unavailable because that provider destroyed them in the few months before the Board’s 2018 records request, this was not due to VA “negligence” or “delay.”  Rather, the Veteran failed to cooperate with VA’s multiple, express efforts to obtain releases needed to authorize the AOJ to request these specific records, even though he had more than ample notice and opportunity to do so, starting well before some records were destroyed.
In conclusion, VA satisfied the duty to assist the Veteran in attempting to obtain all available, identified private treatment records from Dr. S.S., contrary to the attorney’s disingenuous and inaccurate contentions otherwise. 
2. VA satisfied the duty to assist the Veteran through attempts to obtain all available service treatment records concerning the 1982 accident.
In June 2011, the AOJ requested the Veteran’s inpatient treatment records from Souda Bay Naval Hospital from March 1982, and received a negative response in September 2011.  In September 2016, the AOJ re-requested the Veteran’s inpatient treatment records from Souda Bay Naval Hospital from March to April 1982 regarding treatment for injuries following a motor vehicle accident.  In December 2016, the AOJ documented a negative response to that request. Additionally, while some of the Veteran’s service treatment records, including poor microfiche copies, were illegible, they were marked by the “Best Copy” stamp.  Thus, further efforts to obtain new scans would be futile. In summary, the Board finds the AOJ made adequate attempts to obtain all available service treatment records from the 1982 motor vehicle accident.  As explained above, even assuming for the sake of argument that the Board were to concede that the Veteran sustained right shoulder and/or lumbar spine injuries during the documented 1982 accident, both claims still would be denied for lack of a nexus.
Neither the Veteran nor his representative has raised any other duty to notify or duty to assist issues since the 2017 JMPR.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).  Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R.§ 3.103(c)(2), and neither has identified any prejudice in the conduct of the Board hearing.  As the issue has not been raised, there is no need for the Board to discuss compliance with Bryant v. Shinseki, 23 Vet. App. 488 (2010).  See Dickens, supra.
REASONS FOR REMAND
As discussed above, the Board took jurisdiction over an inferred TDIU claim under Rice, supra.  The AOJ must notify the Veteran of the legal requirements for substantiating a TDIU claim and request a completed VA Form 21-8940 (TDIU claim form).
The matters are REMANDED for the following action:
1. Send the Veteran a VCAA notice (cc’ing his representative) informing him how to substantiate a claim for entitlement to a TDIU and asking him to submit a completed VA Form 21-8940 (TDIU claim form).
2. Develop the TDIU claim as necessary and appropriate, e.g., by verifying any identified prior employment.
 
MICHELLE L. KANE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R. Janofsky, Associate Counsel