Citation Nr: 18111231 Decision Date: 06/15/18 Archive Date: 06/14/18 DOCKET NO. 14-34 858A DATE: June 15, 2018 ORDER Whether new and material evidence has been received sufficient to reopen a previously-denied claim to establish service connection for major depression with polysubstance abuse, to include as secondary to a service-connected disability, is granted. Entitlement to service connection for a gastrointestinal disability, to include as secondary to a service-connected disability, is denied. Entitlement to service connection for diabetes mellitus, type II, claimed as secondary to a service-connected disability, is denied. Entitlement to an effective date earlier than March 13, 1998, for the grant of service connection for bilateral hallux valgus and pes planus, to include whether a July 1977 rating decision contains Clear and Unmistakable Error (CUE), is granted. REMANDED Entitlement to service connection for a low back disability, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for a bilateral ankle disability, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for a bilateral knee disability, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for an acquired psychiatric disability, to include as secondary to a service-connected disability, is remanded. Entitlement to an evaluation more than 30 percent for service-connected bilateral hallux valgus and pes planus, to include on an extraschedular basis, is remanded. Entitlement to Special Monthly Compensation (SMC) based on loss of use of both feet is remanded. Entitlement to a total evaluation based on individual unemployability due to a service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. In a November 2002 rating decision, the RO denied the Veteran’s claim to establish service connection for major depression with polysubstance abuse. 2. The Veteran did not express timely disagreement with the November 2002 rating decision, and VA did not receive pertinent new and material evidence regarding the issue denied within the appellate period. 3. Evidence received since the final November 2002 rating decision raises a reasonable possibility of substantiating the Veteran claim to reopen and establish service connection for an acquired psychiatric disability, to include as secondary to a service-connected disability. 4. The most probative competent evidence of record does not demonstrate that the Veteran has been diagnosed with a gastrointestinal disability during the pendency of the appeal or within a year of filing his claim for benefits. 5. The most probative competent evidence of record does not demonstrate that the Veteran’s diabetes mellitus, type II, was caused or aggravated by his service-connected bilateral foot disabilities, to include the cortisone injections prescribed for treatment of these disabilities. 6. In a July 1977 rating decision, the RO denied the Veteran’s claim to establish service connection for a bilateral foot disability. 7. The Veteran did not express timely disagreement with the July 1977 rating decision, and VA did not receive pertinent new and material evidence regarding the issue denied within the appellate period. 8. The July 1977 rating decision plainly was erroneous by not granting service connection for bilateral hallux valgus and pes planus, since medical evidence showed that the Veteran’s bilateral foot disabilities were not noted upon entrance to service, and while there was clear and unmistakable evidence that this disorder pre-existed service, there was not clear and unmistakable evidence that this disorder was not aggravated by his active duty; the presumption of soundness as to these disorders was therefore not rebutted. 9. The Veteran is shown to have bilateral hallux valgus and pes planus during and after his service. CONCLUSIONS OF LAW 1. The November 2002 rating decision is final. 38 U.S.C. § 7105 (c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. Evidence received by VA subsequent to the November 2002 rating decision to reopen the claim of entitlement to service connection for Major Depression is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (a) (2017). 3. The criteria for service connection for a gastrointestinal disability are not met. 38 U.S.C. §§ 511, 7104, 7105 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2017). 4. The criteria for service connection for diabetes mellitus, type II, are not met. 38 U.S.C. §§ 511, 7104, 7105 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2017). 5. The July 1977 rating decision denying service connection for bilateral hallux valgus and pes planus is final. 38 U.S.C. § 4005 (c) (1970); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1977); 38 U.S.C. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2017). 6. The July 1977 rating decision contained CUE. 38 C.F.R. § 3.105 (a) (2017). 7. Service connection for bilateral hallux valgus and pes planus was warranted based on the evidence record and controlling laws present in July 1977. 38 U.S.C. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.304, 3.306 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from February 1976 to May 1977 with prior service of an unverified nature. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2011, June 2013, and October 2014 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran disagreement with several determinations in those decisions, and the present appeal ensued. Characterization and clarification of issues on appeal During the pendency of the appeal, the RO separately developed and adjudicated the Veteran’s claims to establish service connection for both ankles and knees as 4 issues. Because the Veteran’s assertions concerning all of these issues are congruent and for the sake of economy, the Board has merged these issues based on the body parts claimed for each disability and recharacterized them as 2 separate issues seeking to establish service connection for the bilateral knee and ankles. In the October 2014 rating decision, the RO denied the Veteran’s claim seeking to establish TDIU, and the Veteran expressed timely disagreement with this determination. While the Board notes that the Veteran has not been provided a Statement of the Case (SOC) readjudicating this issue and is mindful of the United States Court of Appeals for Veterans Claims’ (the Court’s) holing in Manlincon v. West, 12 Vet. App. 238 (1999), the issue is under the Board’s jurisdiction and has been included on the title page as part and parcel of the Veteran’s pending appealed issue seeking an increased evaluation. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). In a May 2012 statement, the Veteran asserted that his service-connected bilateral foot disabilities present an exceptional disability picture that is not, and would not be, contemplated by VA’s Rating Schedule. Thus, the issue has been expanded to include consideration of whether an increased evaluation may be assigned on an extraschedular basis. As will be discussed further below, the Veteran previously filed a claim to establish service connection for depression, which was denied by the Agency of Original Jurisdiction (AOJ). He later filed a petition to reopen this previously-denied claim, and the Board grants this petition below. After reopening the previously-denied claim, the Board is expanding the issue remaining on appeal to include all acquired psychiatric disabilities which have been diagnosed during the appeal period. Clemons v. Shinseki, 23 Vet. App. 1 (2009). (The issue of entitlement to an effective date earlier than December 1, 2013, for the apportionment of the Veteran's VA disability benefits due to his incarceration is the subject of a separate decision, and that decision will be sent to the Veteran and the appellant under a separate cover.) Service Connection and New and Material Evidence Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Diseases diagnosed after discharge may be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Establishing direct service connection requires evidence of: (1) a current disability; (2) a disease; injury, or event in service; and (3) a nexus between the claimed disability and the disease, injury, or event in service and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). If a chronic disease, is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Competent medical evidence may include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a) (2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). New evidence means existing evidence not previously submitted to VA. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2017). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the Court of Appeals for Veterans Claims (the Court) held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA’s duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court has also held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2012). Even if no appeal is filed, a rating decision is not final if new and material evidence is submitted within the appeal period and has not yet been considered by VA. 38 C.F.R. § 3.156(b) (2017); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board notes that it has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as to the claim being decided. 1. Whether new and material evidence has been received sufficient to reopen a previously-denied claim to establish service connection for an acquired psychiatric disability, to include as secondary to a service-connected disability In the November 2002 rating decision, the AOJ denied the Veteran’s claim to establish service connection for major depression with polysubstance abuse because, at the time, there was no evidence that the disability was proximately due to or the result of his service. The Veteran was notified of the decision that same month, but VA did not receive an expression of disagreement or pertinent new and material evidence within one year of the AOJ’s November 2002 rating decision. 38 C.F.R. § 3.156(b) (2017); Bond v. Shinseki, 659 F. 3d 1362 (Fed. Cir. 2011). In light of above, the November 2002 rating decision is final with regard to this issue. 38 U.S.C. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). The Veteran submitted a petition to reopen the previously-denied claim to establish service connection for this issue in June 2011, asserting that his depression was caused or aggravated by his service-connected bilateral foot disabilities. The AOJ denied the Veteran’s petition to reopen this claim in the June 2013 rating decision and the present appeal ensued. To the extent that the petition to reopen the previously-denied claim was asserted under a different theory seeking service connection than that asserted at the time of the November 2002 denial, the Board notes that this fact does not, itself, represent a new claim for benefits or new and material evidence. Ashford v. Brown, 10 Vet. App. 120 (1997) During the pendency of the present appeal, the AOJ reopened this previously-denied claim and denied the issue on the merits. Regardless of the AOJ’s decision on this matter, the Board is not bound by that determination as to whether the claim should be reopened, and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). As noted above, the basis of the prior final denial in November 2002 was the AOJ’s finding that there was no evidence of that the Veteran’s major depression with polysubstance abuse was proximately due to or the result of any incident of his service. Thus, in order for the Veteran’s claim to be reopened, evidence must have been added to the record since the November 2002 rating decision that addresses this basis. Evidence submitted and obtained since the November 2002 rating decision includes the medical report of a June 2013 VA examination, wherein the examiner stated that the Veteran was experiencing psychiatric symptoms stemming, in part, from childhood abuse. This evidence is “new,” as it had not been previously considered by VA at the time of the November 2002 rating decision, and “material” as it raises the reasonable possibility of substantiating the claim. Specifically, as the Veteran’s childhood stressor occurred prior to his active duty, the resulting symptoms may have manifested prior to or during his service. The Board, thus, finds that new and material evidence has been submitted to reopen the issue of entitlement to service connection for major depression with polysubstance abuse. On that basis, the previously-denied claim is reopened 2. Entitlement to service connection for a gastrointestinal disability, to include as secondary to a service-connected disability The Veteran claims that he has a current gastrointestinal disability which is caused or aggravated by medications prescribed to manage pain associated with his service-connected bilateral foot disabilities. However, in consideration of the complete record under the laws and regulations as set forth above, the Board concludes that the most probative competent evidence does not demonstrate that the Veteran has been diagnosed with a gastrointestinal disability during his active duty or at any time during the appeal period, and thus, service connection is not warranted. The record reflects that the Veteran filed his current claim to establish service connection for a gastrointestinal disability in January 2012, asserting that the pain medications prescribed for his service-connected bilateral foot disabilities were causing “stomach problems”. Despite the fact that the Board accepts that the Veteran experienced gastrointestinal symptoms during his active and thereafter, the medical evidence reflects that these were acute and transitory episodes, and he was not diagnosed with a chronic gastrointestinal disability. The June 2013 VA examination report reflects that the Veteran reported experiencing gastrointestinal symptoms since service, and that he had been diagnosed with “Gasto- something,” although he could not recall the exact diagnosis. After a review of the complete record and interview with, and examination of, the Veteran, the examiner noted that there was no evidence of a gastrointestinal disability upon completion of the examination or in review of the complete medical record. The examiner ultimately opined that the medical evidence and statements from the Veteran are not consistent with a post-service diagnosis of any gastrointestinal disability. In the absence of proof of a diagnosis of a gastrointestinal disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A veteran's belief that he or she is entitled to some sort of benefit simply because he had in-service symptoms while on active service is mistaken, as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a diagnosed disability. Id. Service connection can also be warranted if there was a disability present at any point during the claim period, even if it is not currently present. McClain v. Nicholson, 21 Vet. App. 319 (2007). The evidence does not demonstrate a gastrointestinal disability at any point during the appeal period. The Board is also cognizant of the holding of the Court's holding in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). In Romanowsky, the Court held that when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. In a footnote, the Court noted that a determination that a diagnosis is "sufficiently proximate to the filing of a claim so as to constitute evidence of a 'current diagnosis' is a factual finding to be made by the Board in the first instance." However, in this case, there is no evidence, to include from the Veteran, of a post-service diagnosis of a gastrointestinal disability. Here, the June 2013 VA examiner stated that the medical evidence dating back to 2009 (several years prior to the Veteran filing this claim) was devoid of any diagnosed gastrointestinal disability. The Veteran is competent to testify to those things that come to him through his senses, such as experiencing stomach pain and symptoms, see Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005), and his account thereof is competent and credible. In the Veteran's statements, he does identify experiencing gastrointestinal symptomatology after his separation from service. However, there is no indication that the Veteran was the knowledge or training necessary to competently or credibly attribute these symptoms to a gastrointestinal disability by way of a specific medical diagnosis. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed). There is also insufficient competent or credible evidence of a gastrointestinal disability at any point during the appeal period. McClain v. Nicholson, 21 Vet. App. 319 (2007). In view of the foregoing, the Board must conclude that the preponderance of the evidence is against a finding that the Veteran has a current gastrointestinal disability, and thus, his appeal must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim advanced must be denied. 38 U.S.C. § 5107 (b); see also, generally, Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to a service-connected disability The Veteran has not asserted that this disability is the result of in-service incurrence; rather, he contends that diabetes mellitus, type II, was caused or aggravated by cortisone shots that he received as part of his treatment regimen for his service-connected bilateral foot disabilities. As such, the Board’s analysis will focus on the applying the facts to the laws regarding secondary service connection. It is uncontroverted that diabetes mellitus, type II, was initially diagnosed in 2010, and the Veteran has regularly received cortisone injections for treatment of the symptoms associated with his service-connected bilateral foot disabilities. In light of above, elements (1) and (2) to establish service connection under 38 C.F.R. § 3.310 (a) and the Court’s holding in Allen have been demonstrated. Accordingly, the crux of this issue is whether there is competent and credible evidence that this disability was caused or aggravated by the Veteran’s service-connected bilateral foot disabilities, to include the prescribed cortisone injections. After a review of the complete file and an examination of and interview with the Veteran, the June 2013 VA examiner opined that the Veteran’s diabetes mellitus, type II, was less likely as not caused or aggravated by his service-connected bilateral foot disabilities, to include the prescribed cortisone injections. While the examiner observed that the cortisone injections elevated the Veteran’s blood sugar levels, it was noted that this was only temporary. Critically, it has been well-established that temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The examiner also stated that the Veteran met many of the risk factors for the development of diabetes mellitus, type II. The only evidence weighing against the June 2013 VA examiner’s opinions are the statement from the Veteran, but it has been held that the Veteran does not have the medical expertise or training to render a competent and credible medical opinion concerning causation of a disability. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. Sept. 14, 2009), citing Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In contrast, the June 2013 VA examiner does possess the medical training and knowledge to competently and credibly opine on matters of causation and aggravation, and his opinion is congruent with the evidence of record and cited medical literature. Bloom v. West, 12 Vet. App. 185, 187 (1999). In view of the foregoing, the Board must conclude that the preponderance of the evidence is against a finding that the Veteran’s diabetes mellitus, type II, was caused or aggravated by the cortisone shots prescribed for treatment of his service-connected bilateral foot disability. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim advanced must be denied. 38 U.S.C. § 5107 (b); see also, generally, Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to an effective date earlier than March 13, 1998, for the grant of service connection for bilateral hallux valgus and pes planus, to include whether a July 1977 rating decision contains Clear and Unmistakable Error (CUE) By way of history, the Veteran initially filed a claim to establish service connection for a bilateral foot disability upon his separation from service in May 1977, although this filing is not of record. The Veteran’s claim was denied by the RO in a July 1977 rating decision. The Veteran did not express disagreement with this decision, and VA did not receive pertinent new and material evidence within the appeal period. As such, the July 1977 rating decision is final. 38 U.S.C. § 4005 (c) (1970); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1977); 38 U.S.C. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2017). The Veteran filed a petition to reopen this previously-denied claim in July 1994, which was denied in an August 1994 administrative decision. Although the Veteran filed a timely notice of disagreement with this denial and was provided a Statement of the Case (SOC) in October 1994 continuing to deny the benefits sought, he did not perfect an appeal to the Board in a timely manner. In March 1998, the Veteran filed another petition to reopen the previously-denied claim to establish service connection for a bilateral foot disability. After this petition was denied by the RO in a February 1999 rating decision, the Veteran instituted an appeal that was continuously prosecuted until service connection for bilateral hallux valgus and pes planus was granted by the Board in a December 2010 decision. The Board’s allowance was implemented by the RO in a January 2011 rating decision that assigned a single 30 percent initial evaluation, effective from March 26, 1998 – the date that VA received the Veteran’s most-recent petition to reopen his previously denied claim to establish service connection for a bilateral foot disability. The Veteran contends that an effective date prior to March 13, 1998, for the award of service connection for bilateral hallux valgus and pes planus is warranted. Specifically, his contentions are three-fold: (1) he contends that the RO erred in the January 2011 rating decision (from which this appeal stems) in assigning an effective date of March 13, 1998, for the grant of service connection for bilateral hallux valgus and pes planus; (2) he asserts that he did not receive, and was not otherwise notified of, the October 1994 SOC which denied his petition to reopen his previously-denied claim to establish service connection for a bilateral foot disability; and (3) he contends that a July 1977 rating decision that denied his initial claim to establish service connection for a bilateral foot disability contains Clear and Unmistakable Error (CUE). Essentially, the first two theories of entitlement are based on the laws controlling effective dates (38 C.F.R. § 3.400) and the final contention is based on the laws pertaining to revision of final rating decisions based on CUE (38 C.F.R. § 3.105), and each theory of entitlement, if granted by the Board, would result in allowances of varying degrees. As will be further discussed below, the Board concludes that the July 1977 rating decision contained CUE in denying service connection for a bilateral foot disability, and the award stemming from this determination is the largest allowable under the law. See 38 U.S.C. § 5304; 38 C.F.R. § 3.654(a) (2017). As such, the Board will focus solely on the Veteran’s third contention, which is based on CUE in the July 1977 rating decision. Clear and Unmistakable Error Under the provisions of 38 C.F.R. § 3.105(a), previous determinations that are final and binding will be accepted as correct in the absence of CUE. In order for a claim of CUE to be valid, there must have been an error in the prior adjudication of the claim; either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. Phillips v. Brown, 10 Vet. App. 25, 31 (1997); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). Further, the error must be “undebatable” and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made, and a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Id. Simply to claim CUE on the basis that the previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE, nor can broad-brush allegations of the “failure to follow the regulations” or “failure to give due process,” or any other general, non-specific claim of “error” meet the restrictive definition of CUE. Fugo v. Brown, 6 Vet. App. 40, 44 (1993). CUE is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). It is a very specific and rare kind of error of fact or law that compels the conclusion, as to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo, 6 Vet. App. at 43. Where evidence establishes CUE, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. §§ 3.104(a), 3.400(k). The United States Court of Appeals for Veterans Claims (Court) has propounded a three-pronged test to determine whether CUE is present in a prior final determination: (1) [E]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied; (2) the error must be “undebatable” and of the sort “which, had it not been made, would have manifestly changed the outcome at the time it was made”; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel, 6 Vet. App. at 24, quoting Russell, 3 Vet. App. at 313-14. To raise a valid claim of CUE, the claimant must state, with “some degree of specificity,” what the error is and also provide “persuasive reasons” why the result would have been manifestly different but for the alleged error. An assertion that the adjudicators had “improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE.” Fugo, 6 Vet. App. at 43-44 (1993). It must be remembered that there is a presumption of validity to otherwise final decisions, and that where such decisions are collaterally attacked, and a CUE claim is undoubtedly a collateral attack, the presumption is even stronger. The Board notes that before the 1990 effective date of what is now 38 U.S.C. § 5104(b), AOJs were not required to set forth in detail the factual bases for their decisions. Recognizing this, the Federal Circuit has explained that, in the absence of evidence to the contrary, the AOJ is presumed to have made the requisite findings. See Natali v. Principi, 375 F.3d 1375, 1380-81 (Fed. Cir. 2004); Pierce v. Principi, 240 F.3d at 1355-56. In determining whether CUE exists in such a case, the Board must examine the evidence of record; assume that the AOJ was aware of and duly considered extant law; and form a conclusion as to whether the AOJ decision was supportable in light of the evidence and law that then existed. Hauck v. Nicholson, 403 F.3d 1303, 1305-06 (Fed. Cir. 2005). Silence in a final AOJ decision made before 1990 cannot be taken as showing a failure to consider evidence of record. Eddy v. Brown, 9 Vet. App. 52, 58 (1996). Analysis The Veteran essentially asserts that the record before the RO at the time of the July 1977 rating decision contained evidence that he had a bilateral foot disability which clearly and unmistakably pre-existed his service and was clearly and unmistakably aggravated beyond the normal progression of the disease during his service. As such, he contends that the July 1977 rating decision was clearly and unmistakably erroneous in denying service connection for this disability, and that the outcome of the decision would have been manifestly different if not for this error. The Board notes that the laws pertaining to service connection and rebutting the presumption of sound condition were the same in July 1977 as they are today. A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). When determining whether a defect, infirmity, or disorder is "noted" at entrance into service, supporting medical evidence is needed. Crowe v. Brown, 7 Vet. App. 238 (1994). Mere transcription of medical history does not transform information into competent medical evidence. LeShore v. Brown, 8 Vet. App. 406 (1995). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Court has held that lay statements by a veteran concerning a pre-existing condition are not sufficient to rebut the presumption of soundness. Paulson v. Brown, 7 Vet. App. 466, 470 (1995) (a lay person's account of what a physician may or may not have diagnosed is insufficient to support a conclusion that a disability preexisted service); Crowe v. Brown, 7 Vet. App. 238 (1994) (supporting medical evidence is needed to establish the presence of a preexisting condition); see also Leshore v. Brown, 8 Vet. App. 406 (1995) (the mere transcription of medical history does not transform the information into competent medical evidence merely because the transcriber happens to be a medical professional). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. § 3.306 (b). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306 (b). See also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (which holds that evidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat veteran to establish an increase in disability). Therefore, based on the above, in order to find that the July 1977 rating decision was clearly and unmistakably erroneous, it must be concluded that the evidence of record at the time that decision was rendered was such that the only possible conclusion based on the available evidence of record was that the Veteran had a bilateral foot disability which was not noted on his entrance examination, and that while there was clear and unmistakable evidence that this disorder existing prior to service, there was not clear and unmistakable evidence that it was not aggravated during service, and that the presumption of soundness was therefore not rebutted. Essentially, the evidence must undebatably show that the presumption of sound condition was not properly rebutted with regard to the Veteran’s bilateral foot disabilities, and that his in-service and post-service bilateral foot disabilities were the same disabilities. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). The evidence which was before the RO in July 1977, included the Veteran’s service medical records, which included his January 1976 service entrance examination report reflecting no prior foot symptoms or disabilities, and filings pertaining to Medical Board proceedings convened from November 1976 to February 1977. In addition, the Board notes that the Veteran’s service treatment records are replete with complaints of, and treatment and physical profiles for, symptoms of bilateral pes planus and hallux valgus, and diagnoses of both disabilities. A narrative of the February 1977 Medical Board findings noted the recommendation that the Veteran be “Separated from the service in accordance with AR 635-40 Chapter 5 as an expeditious discharge.” The July 1977 rating decision noted the Veteran’s service treatment records showing bilateral foot symptoms, multiple physical profiles based on these symptoms, and the finding of the Medical Board that the Veteran’s pes planus and hallux valgus pre-existed his service. After recounting the above medical records and findings, the rating decision makes the conclusory statement “There is no indication of record that the pre-existing condition was aggravated by the [V]eteran's military service.” Additionally, the Codesheet portion of the rating decision contains an acronym showing that the claim was denied and the verbiage “HALLUX VALGUS BILATERALLY WITH PES PLANTAL VALGUS (EPTS)” (existing prior to service) [Emphasis as in the original]. As noted above, in order to find that the July 1977 rating decision was clearly and unmistakably erroneous, it must be concluded that the evidence of record at the time that decision was rendered was such that the only possible conclusion based on the available evidence of record was that while there was clear and unmistakable evidence that the Veteran’s bilateral hallux valgus and pes planus pre-existed his service, there was not clear and unmistakable evidence that the disorder was not aggravate by service, and that the presumption of soundness was therefore not rebutted. As further noted above, given that the RO had conceded that the in-service foot disorders were the same that as those the Veteran’s suffered from after service, the application of the presumption of soundness required the establishment of service connection. As noted above, CUE requires that error, otherwise prejudicial, must appear undebatably. Akins, supra. The Board finds that the July 1977 rating decision was clearly and unmistakably erroneous in denying service connection for a bilateral foot disability. In this regard, the Board notes that while the July 1977 rating decision cites to various service treatment records and portions of the Medical Board findings dated from November 1976 to February 1977, there is no reference to the Veteran’s service entrance examination, which does not note any pre-existing foot symptoms or disabilities, or a February 1977 Medical Board Proceeding (DA Form 3947 (Oct. 1972), which is signed by 3 clinicians and reflects that the Veteran’s bilateral hallux valgus and pes planus pre-existed his active duty and was aggravated by his active duty. The Board notes that, prior to the 1990 effective date of what is now 38 U.S.C. § 5104(b), AOJs were not required to set forth in detail the factual bases for their decisions. Recognizing this, the Federal Circuit has explained that, in the absence of evidence to the contrary, the AOJ is presumed to have made the requisite findings. See Natali v. Principi, 375 F.3d 1375, 1380-81 (Fed. Cir. 2004); Pierce v. Principi, 240 F.3d at 1355-56. However, the fact that Veteran’s service entrance examination was not cited brings into question whether the RO applied the correct laws pertaining to rebutting the presumption of sound condition in adjudicating his claim for benefits, as this two-step process cannot be undertaken without discussing the evidence present on this document. In this regard, the February 1977 Medical Board proceedings clearly and unmistakably show that the Veteran’s bilateral hallux valgus and pes planus pre-existed his service, which fulfills the first step of rebutting the presumption of sound condition. However, the evidence of record does not show that there was clear and unmistakable evidence that these disorders were not aggravated during service. Specifically, while the RO stated in the July 1977 rating decision that “[t]here is no indication of record that the pre-existing condition was aggravated by the [V]eteran's military service,” the February 1977 Medical Board Proceeding’s ultimate finding, signed by 3 clinicians, reflects that the pre-existing hallux valgus and pes planus were aggravated by his active duty. Therefore, armed with this evidence, and in light of the standard that required clear and unmistakable evidence to rebut the presumption of soundness, the Board finds that the only conclusion that the RO could have reached was that there was not clear and unmistakable evidence to rebut the presumption. Akins, supra. As such, the Board concludes that the presumption of sound condition was not properly rebutted by the RO in the July 1977 rating decision, and the Veteran is presumed to have been in sound condition upon entrance to service. Once this conclusion is reached, the evidence of record, to include the RO’s own findings in the July 1977 rating decision, support that the Veteran had in-service and post-service diagnoses of bilateral hallux valgus and pes planus. These facts are not disputed by the RO and support a finding that the criteria for direct service connection for both disabilities are met. Thus, the Board finds that the July 1977 rating decision contained clear and unmistakable error and that service connection for the Veteran’s bilateral hallux valgus and pes planus was warranted at the time of the decision. 38 C.F.R. § 3.105 (a) (2017). In granting this issue, the Board has determined that service connection for bilateral hallux valgus and pes planus was warranted at the time of the July 1977 rating decision. As the Veteran’s initial claim seeking these benefits was received by VA within his initial post-service year, the effective date of the award should be set for the day after the Veteran’s separation from service. The Board further notes that, to the extent that an initial evaluation from that effective date must be set, in implementing this allowance, the AOJ should consider whether separate evaluations for these disabilities are warranted, to include on an extraschedular basis, as is true with the Veteran’s current appeal for an increased evaluation for these disabilities, which is remanded by the Board, below. REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 30 percent for service-connected bilateral hallux valgus and pes planus, to include on an extraschedular basis, is remanded. 2. Entitlement to Special Monthly Compensation (SMC) based on loss of use of both feet is remanded. 3. Entitlement to TDIU is remanded. The Veteran was most recently afforded a VA foot examination in May 2015, more than 3 years ago. In statements dated in March 2018 and April 2018, the Veteran, his wife, and his friend have asserted that the symptoms and functional impairment associated with his service-connected foot disabilities has increased since the VA examination. The Veteran is considered competent and credible to report symptoms that he experiences first-hand, as are his wife and friend concerning their reports of witnessing the Veteran’s declining condition. In light of these statements, the Board concludes that a remand is necessary to provide the Veteran a contemporaneous VA foot examination to assess the current frequency and severity of his foot symptoms. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). Also, the Board notes that the Veteran’s service-connected bilateral foot disability is actually comprised of two separate foot disabilities which affect the Veteran’s feet – bilateral hallux valgus and pes planus. While it is unclear why a single evaluation has been assigned for these disabilities, on remand, the AOJ should consider whether the symptoms associated with these distinct disabilities can be differentiated and evaluated separately. See Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009). Further, as noted in the Introduction, this issue has been expanded to include whether an increased evaluation is warranted on an extraschedular basis. While the Board cannot undertake an extraschedular evaluation in the first instance, it is proper for the Board to request that the AOJ do so. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). Upon determining the Veteran is entitled to this special consideration, the appropriate disposition is to refer this matter to the Under Secretary for Benefits or the Director of Compensation Service, as the AOJ has not undertaken this step during the pendency of the Veteran’s appeal. 38 C.F.R. § 3.321 (b)(1) (2017). In addition, because the Veteran’s issues seeking to establish TDIU and SMC for loss of use of both feet are dependent on the combined evaluation assigned for his service-connected disabilities and resulting functional impairment, the issues are inextricably intertwined, and the Board must defer adjudication of these issues for the AOJ’s consideration subsequent to the Veteran’s contemporaneous VA foot examination. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 4. Entitlement to service connection for a low back disability, to include as secondary to a service-connected disability, is remanded. 5. Entitlement to service connection for a bilateral ankle disability, to include as secondary to a service-connected disability, is remanded. 6. Entitlement to service connection for a bilateral knee disability, to include as secondary to a service-connected disability, is remanded. 7. Entitlement to service connection for an acquired psychiatric disability, to include as secondary to a service-connected disability, is remanded. In June 2013, the AOJ obtained VA nexus opinions addressing the etiologies of these disabilities under the theories of direct and secondary service connection. However, these nexus opinions are inadequate for the purpose of adjudicating these issues. Specifically, while the June 2013 VA examiners opined that these disabilities were not caused or aggravated by the Veteran’s service-connected hallux valgus, the opinions do not address whether the Veteran’s service-connected pes planus causes or aggravates these disabilities. Indeed, review of the AOJ’s VA examination and opinion requests reflects that opinions based on causation and aggravation by his service-connected pes planus were not requested. Because the nexus opinions obtained during development for these issues are inadequate, a remand is necessary. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In addition, concerning the issue seeking to establish service connection for an acquired psychiatric disability, while the VA examiner noted that the Veteran was diagnosed with a congenital personality disorder and suffered a childhood trauma resulting in acquired psychiatric symptoms, the provided medical opinion does not address the possibility of establishing service connection by aggravation of a pre-existing disability or of a congenital development beyond the normal progression of the disease. On remand, nexus opinions addressing these theories of entitlement must be addressed. Finally, so that the VA examiners are fully apprised of the most updated medical evidence of record pertaining to the Veteran’s disability picture, updated private and VA treatment records must be obtained and associated with the file for review and consideration. The matters are REMANDED for the following actions: 1. The AOJ must obtain and associate with the file all records of VA treatment from any VA Medical Center (VAMC) and all associated facilities dated after March 26, 2013. 2. The AOJ must contact the Veteran and request that he complete a release for outstanding private treatment records pertinent to remanded by the Board that are not already of record. In these releases, the Veteran should provide a time period in which he was treated at each facility identified. The AOJ should then obtain the records identified by the Veteran and undertake translation, if necessary. As the Veteran has been, and remains, incarcerated, specific requests should be solicited for the Florida State Department of Corrections and any privately contracted medical services utilized by that organization. All records obtained should be associated with the Veteran’s file. If any identified and requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the file, and the Veteran should be informed in writing. 3. Thereafter, the AOJ must request that the Veteran be scheduled for a VA foot examination to evaluate his service-connected bilateral hallux valgus and pes planus. The complete electronic record must be made available to, and reviewed by, the VA examiner prior to conducting the examination. All necessary studies and tests should be conducted. *The examiner must describe the frequency and severity of the manifestations of any disability of either foot – whether service-connected or not. To the extent possible the examiner is requested to attempt to differentiate between what foot symptoms are attributable to which foot diagnosis. *The examiner is also requested to comment on whether the symptoms attributable to the Veteran’s service-connected foot disabilities amount to functional impairment commensurate with loss of use of either foot. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 4. Thereafter, the AOJ must refer the issue of entitlement to an extraschedular evaluation for service-connected bilateral hallux valgus and pes planus to the Director of Compensation Service for a determination as to whether the Veteran is entitled to such a rating under 38 C.F.R. § 3.321. The Director must specifically determine whether, to accord justice, the Veteran's disability picture requires assigning an extraschedular rating commensurate with the average earning impairment that is due exclusively to his service-connected bilateral hallux valgus and pes planus. In so doing the Director must provide an adequate statement of the reasons or bases for its determination. Such a statement must provide adequate reasons and basis for its decision so as to permit appellate review by the Board. The Director must analyze the probative value of the evidence, and account for evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant which would favor the assignment of an extraschedular rating. 5. Thereafter, the AOJ must request that the Veteran be scheduled for an examination to determine the nature and etiology of any acquired psychiatric disability present during the appeal period. The complete electronic record must be made available to, and reviewed by, the VA examiner prior to conducting the examination. All necessary studies and tests should be conducted. Thereafter, the examiner is requested to address the following: a. Identify all acquired psychiatric disabilities present since June 2011. b. For each disability identified in part (a), the examiner should provide an opinion concerning whether such clearly and unmistakably pre-existed the Veteran's service, to include as secondary to the previously-reported childhood abuse. c. If the response to (b) is positive, provide an opinion addressing whether any pre-existing psychiatric disability was clearly and unmistakably permanently aggravated beyond the normal progression of the disease during the Veteran's service. d. If the examiner concludes that any current identified psychiatric disability did NOT pre-exist or if it did, that it was not aggravated during service, provide an opinion whether it is at least as likely as not that the identified disability/disabilities is/are the result of the Veteran's service. e. If the examiner concludes that any current identified psychiatric disability did NOT pre-exist or if it did, that it was not aggravated during service, provide an opinion whether it is at least as likely as not that the identified disability/disabilities is/are caused by a service-connected disability. f. If the examiner concludes that any current identified psychiatric disability did NOT pre-exist or if it did, that it was not aggravated during service, provide an opinion whether it is at least as likely as not that the identified disability/disabilities is/are aggravated by a service-connected disability. g. Provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran’s antisocial personality disorder was subject to a superimposed mental disorder during service that resulted in additional disability. If so, identify the additional disability. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 6. Thereafter, the AOJ must request that the Veteran be scheduled for an examination to determine the nature and etiology of any identified disabilities regarding his knees, ankles, and thoracolumbar spine. The complete electronic record must be made available to, and reviewed by, the VA examiner prior to conducting the examination. All necessary studies and tests should be conducted. Thereafter, the examiner is requested to address the following: a. For each disability of either knee, either ankle, and low back that is identified, provide an opinion concerning whether such is the result of any incident of service. b. For each disability of either knee, either ankle, and low back that is identified, provide an opinion concerning whether such is caused by a service-connected disability. c. For each disability of either knee, either ankle, and low back that is identified, provide an opinion concerning whether such is aggravated by a service-connected disability. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 7. Thereafter, the AOJ must readjudicate the Veteran's appeal. If any benefit sought on appeal is not granted to the Veteran's satisfaction, a Supplemental Statement of the Case (SSOC) should be issued to the Veteran and his representative, and they should be afforded the requisite opportunity to respond before the case is returned to the Board for further appellate action. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Scott W. Dale, Counsel