Citation Nr: 21008764 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 17-34 054 DATE: February 18, 2021 ORDER An initial rating of 20 percent, but no higher, for a right foot disability is granted, subject to regulations governing the payment of monetary awards. Service connection for a right knee disability, to include as secondary to a service-connected disability, is granted. Service connection for a lumbar spine disability, to include as secondary to a service-connected disability, is denied. Service connection for a cervical spine disability, to include as secondary to a service-connected disability, is denied. Service connection for bilateral upper extremity radiculopathy, to include as secondary to a service-connected disability, 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. Throughout the appeal period, the Veteran’s right foot disability has manifested by no more than moderately severe symptoms. 2. The evidence is at least in equipoise that the Veteran’s right knee disability is proximately related to his service-connected right foot metatarsal fracture. 3. The evidence weighs against a finding that the Veteran’s lumbar spine disability was incurred in or is otherwise related to service, is proximately due to or aggravated by a service-connected disability, or manifested to a compensable degree within a year of separation or was otherwise noted in service with continuity thereafter. 4. The evidence weighs against a finding that the Veteran’s cervical spine disability was incurred in or is otherwise related to service, is proximately due to or aggravated by a service-connected disability, or manifested to a compensable degree within a year of separation or was otherwise noted in service with continuity thereafter. 5. The evidence weighs against a finding that the Veteran’s bilateral upper extremity radiculopathy was incurred in service or is otherwise related to an in-service injury, event, or illness or is proximately due to or a service-connected disability, to include the right foot disability. CONCLUSIONS OF LAW 1. The criteria for a 20 percent, but no higher, rating for the Veteran’s service-connected right foot disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5284. 2. The criteria for service connection for a right knee disability as secondary to a service-connected right foot disability, are met. 38 U.S.C. §§ 1131, 5107; 38C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for a lumbar spine disability, to include as secondary to a service-connected disability, are not met. 38 U.S.C. §§ 1131, 5107; 38C.F.R. §§3.102, 3.303, 3.309, 3.310(a), 3.310(b). 4. The criteria for service connection for a cervical spine disability, to include as secondary to a service-connected disability, are not met. 38 U.S.C. §§ 1131, 5107; 38C.F.R. §§3.102, 3.303, 3.309, 3.310(a), 3.310(b). 5. The criteria for service connection for bilateral upper extremity radiculopathy, to include as secondary to a service-connected disability, are not met. 38 U.S.C. §§ 1131, 5107; 38C.F.R. §§3.102, 3.303, 3.309, 3.310(a), 3.310(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1978 to August 1979. This matter is on appeal from a May 2014 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, a videoconference hearing was held before the undersigned. A transcript of the hearing is in the record. The case was previously before the Board in April 2020 when it was remanded for further development. The issue of entitlement to TDIU has been raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Specifically, the evidence reflects the Veteran is not working and the examiner noted during the September 2020 VA examination that the right foot disability causes functional impairment in completing occupational tasks. As such, the issue of entitlement to a TDIU is properly before the Board.   1. Right Foot Disability The Veteran contends that he is entitled to a rating in excess of 10 percent for a right foot metatarsal fracture. In general, disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity caused by a given disability, and separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran has been assigned a 10 percent rating for his service-connected right foot disability pursuant to the criteria of DC 5284. 38 C.F.R. § 4.71a. When a foot condition is specifically listed in the Rating Schedule, it must be rated under the DC that specifically pertains to it. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). Unlisted conditions, on the other hand, may be rated under DC 5284. Id. Under DC 5284, foot injuries are rated as 10 percent disabling when moderate, 20 percent disabling when moderately severe, and 30 percent disabling when severe. With actual loss of use of the foot, a 40 percent rating is assigned. The terms “moderate,” “moderately severe,” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. Use of terminology such as “severe” by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. When assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent (“flare ups”) due to the extent of pain (and painful motion), weakness, premature or excess fatigability, and incoordination. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see 38 C.F.R. §§ 4.40, 4.45, 4.59. While DC 5284 is not based on limitation of motion, the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of § 4.59 indicates that the regulation is not limited to the evaluation of musculoskeletal disabilities under diagnostic codes predicated on range of motion measurements. See Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.   In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994).   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 also 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. For example, 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 observable symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).   In both initial and increased rating claims, the Board must consider staged ratings for the entire period on appeal. A staged rating is appropriate when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings under the applicable diagnostic code. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). The potential for staged ratings accounts for the possible dynamic nature of a disability while the claim works its way through the adjudication process. Id. The Board has therefore considered the claim on appeal with the potential for a staged rating in mind.   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.  In this case, September 2013 VA treatment records note that a visual inspection of the right foot was normal. The Veteran was provided with a VA examination in April 2014. The examiner noted a diagnosis of fractured right second metacarpal. The Veteran reported swelling, pain, and “always having to support my weight more on my left leg than my right” when standing up. He reported taking several minutes to “warm up” and then he can walk with a normal gait. He reported wearing loafers that give him space on the dorsal aspect of the foot and reported being unable to wear lace-up shoes. He reported that when he must wear a lace-up shoe, he must tie the shoes tightly. He reported that when he walks on uneven ground or has to walk up hills, the foot is painful, and he must walk slowly in such situations. He reported flare-ups which occur during cold weather or from increased pressure, such as when he has to lift things and brace his lower body by setting his feet in a stable position to bear a load. He reported pain lasting for up to 3 hours. He reported stiffness in the mornings and difficulty going up stairs. On long trips when he drives, he lets his fiancé drive after several hours, as his right foot is uncomfortable, and sometimes the medial aspect of the right great toe swells. The examiner noted hammer toes on the second, third, and fourth toe. The examiner also noted the Veteran had hallux valgus, but indicated that the Veteran did not have symptoms of hallux valgus and had not had surgery due to hallux valgus. The examiner noted the Veteran did not have hallux rigidus, pes cavus, or malunion or nonunion of the tarsal or metatarsal bones. The examiner noted moderate severity of his right foot injury. There was no evidence of bilateral weak foot. The examiner noted bilateral heel varus and fungal disease in the nails. The Veteran reported regular use of a cane for ambulation due to the foot condition. The examiner noted that the foot condition impacts the Veteran’s ability to work because he is a general contractor and has difficulty walking around construction sites and often must ask others to walk a site for him when he cannot ambulate. In an August 2014 notice of disagreement (NOD), the Veteran reported pain and discomfort with swelling. He reported limited range of motion with dorsal flexion. September 2014 VA treatment records note that a visual inspection of the foot showed thickened toenails. In May 2016, the Veteran was provided with an additional VA examination. The examiner reported pain rated as 9 to 9.5 out of 10 “all the time” located along the dorsal forefoot and plantar mid arch. The Veteran reported that he experienced swelling but did not have increased warmth or redness. The Veteran stated he had stiffness, but no locking. He reported that his foot will give way. The Veteran did not use any braces or orthopedic assistive devices related to the foot. The examiner noted that the Veteran’s activities of daily living are not limited but stated that he must be careful with getting in and out of the bathtub. He noted that the Veteran’s job is limited because he has difficulty walking and standing at construction sites. He noted difficulty on uneven surfaces. The examiner noted limited prolonged walking and standing. Physical examination revealed that the Veteran had pain on use of the right foot and that the pain was accentuated on use. He also had pain on manipulation of the right foot with an indication of swelling on use. The Veteran did not have characteristic callouses. The Veteran did not have extreme tenderness of plantar surfaces and did not have decreased longitudinal arch height or marked pronation. There was no lower extremity deformity causing alteration of the weight-bearing line. The Veteran did not have inward bowing of the Achilles tendon or marked inward displacement and severe spasm of the Achilles tendon. The Veteran did not have Morton’s neuroma or metatarsalgia. The examiner noted that the second, third, fourth, and little toe were affected by hammer toes. The examiner noted that the Veteran had asymptomatic hallux valgus to the first metatarsophalangeal joint and had not had surgery for hallux valgus. The Veteran did not have symptoms due to hallux rigidus. The examiner noted pain on weight-bearing, disturbance of locomotion, and interference with standing. The examiner noted pain with prolonged standing and walking and noted that flare-ups limit walking and standing. The Veteran’s gait was normal with no swelling, increased warmth, or redness and no torsional pain. There was tenderness to the plantar mid arch and dorsal right foot. The Veteran did not use an assistive device. He reported limited prolonged walking and standing and difficulty with uneven surfaces. The examiner provided an opinion that the hallux valgus, calcaneal spur, and hammertoes were less likely than not secondary to the healed second metatarsal fracture. He indicated that there was nothing in currently accepted, peer reviewed, credible and authoritative orthopedic literature that demonstrates that a well healed uncomplicated metatarsal fracture in the remote past, with or without altered gait pattern will induce these conditions in the ipsilateral foot in the distant future. April 2017 VA treatment records note that the Veteran reported pain with ambulation. August 2017 VA treatment records note foot pain. August 2017 X-rays revealed degenerative changes of the interphalangeal joints and tarsal bones and mild pes planus. March 2019 VA treatment records note thickened toenails on visual inspection. During the February 2020 hearing, the Veteran reported using an orthopedic insert that caused swelling and pain. He also reported worsening and stated that he needs to rest his foot due to cramping. In September 2020, the Veteran was provided with an additional VA examination. The Veteran reported using arch support without any relief of his pain. He reported constant right foot pain located at the top and plantar arch of the right foot that radiates to his upper right leg along with numbness to the right lateral foot. He rated the pain as 7 out of 10 and goes up to 10 out of 10 when walking. He reported that walking, standing too long, or walking up and down stairs makes the pain worse. He described the pain as “needle shooting pain.” He reported flare-ups caused by everyday activities. The examiner noted no Morton’s neuroma, metatarsalgia, hammer toe, or hallux rigidus symptoms. He indicated that the Veteran did not have symptoms due to hallux valgus and had not had surgery for hallux valgus. The examiner noted the severity of the residuals of the Veteran’s foot injury as moderate and explained that the Veteran had residual pain and limitation in walking or standing too long from status post right foot second metatarsal fracture. The examiner indicated the foot condition did not chronically compromise weight bearing and that it did not require arch supports, custom orthotic inserts or shoe modifications. There was pain on examination, but it did not contribute to functional loss. The examiner noted pain on movement, pain on weight-bearing, pain on non-weight-bearing, disturbance of locomotion, and interference with standing. The examiner noted that pain, weakness, fatigability, or incoordination did not significantly limit functional ability or during flare-ups or when used repeatedly over a period of time. The Veteran reported occasional use of a cane for ambulation. The examiner noted that the condition impacts the Veteran’s ability to perform occupational tasks because he cannot walk or stand any certain period of time, walking up and down is very difficult, he is not able to balance well, most of the time he has constant shooting pain, he has difficulty with any type of daily activities, and he walks slowly with a cane. Upon review of the record, the Board finds that the evidence most nearly approximates residuals of injury to the right foot that are moderately severe. The evidence reflects that the Veteran’s right foot disability results in pain and swelling that causes functional impairment of not being able to walk or stand for prolonged periods and requires use of a cane. The Veteran wears wider shoes and cannot wear lace up shoes. He has indicated, at the February 2020 hearing and at the September 2020 examination that he uses an arch support which does not relieve the pain. He has reported experiencing pain that varies from a 7 to a 9 or 9.5 on a scale of 10 and increases to 10 during flare ups. At the May 2016 VA examination he reported that his foot will sometimes give way and the examiner noted that pain was accentuated on use and that there was pain on manipulation of the foot with swelling. He has reported experiencing flare ups during everyday activities. In examining this evidence in a light most favorable to the Veteran, the Board finds it is at least in equipoise that the Veteran’s right foot injury residuals most nearly approximate the criteria for a higher 20 percent rating, based on moderately severe impairment. However, a preponderance of the evidence is against a finding that the Veteran’s disability manifests with symptoms reflecting severe impairment. The Board has considered whether a higher rating is appropriate under 38 C.F.R. §§ 4.40, 4.45, and 4.59 and has concluded that such is not warranted. The limitations and functional impact the Veteran experiences due to pain, weakness, discomfort, and similar complaints are accounted for in the increased 20 percent rating for moderately severe symptomatology. The evidence does not demonstrate additional functional limitation more closely approximating the criteria for a higher rating at any time during the appeal period. The Board has considered whether the Veteran is entitled to a separate or higher rating under any other applicable DC of the rating schedule. 38 C.F.R. § 4.71a, DCs 5276-5284. Regarding pes planus under DC 5276, August 2017 X-rays revealed the Veteran had mild pes planus. However, it is unclear whether the pes planus is related to the Veteran’s service-connected right foot injury. As such, the Board has considered whether the Veteran is entitled to a higher rating under DC 5276. The May 2016 VA examiner identified that the Veteran experienced pain on use, pain accentuated on use and pain on manipulation of the foot with swelling, which are symptoms described in DC 5276 for a 20 percent rating for unilateral pes planus. The Board is assigning a 20 percent rating under DC 5284; thus, rating under DC 5276 would not provide the Veteran with a higher rating, and it is not more favorable to evaluate the Veteran’s condition under DC 5276. In order for a 30 percent rating to be awarded based on pes planus for unilateral foot disability under DC 5276, the evidence would need to show pronounced symptoms, including marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. The evidence of record does not reflect such symptomatology and a preponderance of the evidence is against a finding that the Veteran would be entitled to a higher 30 percent rating under DC 5276 if the Board were to rate his right foot disability under DC 5276. Therefore, the Board concludes that it is most favorable to continue the Veteran’s evaluation for his right foot disability under DC 5284 as that DC most accurately reflects the nature of the Veteran’s right foot injury. Additionally, a separate rating under DC 5276 would not be warranted as this would amount to impermissible pyramiding as the symptoms considered in the evaluation being assigned under 5284 would also be considered in the evaluation under 5276. 38 C.F.R. § 4.14. The record also reflects that the Veteran has hallux valgus and hammer toes, which are evaluated under DC 5280 and 5282, respectively. However, the May 2016 VA examiner specifically opined that hallux valgus and hammertoes were less likely than not secondary to the healed second metatarsal fracture. He provided a clear rationale for this opinion and the Board places great weight of probative value on this opinion. Thus, the Board finds that the Veteran’s hammer toes and hallux valgus are not entitled to separate compensable ratings, as they are not a part of the Veteran’s service-connected right foot disability. The Board further notes that even if hallux valgus and hammer toes were considered to be related to the Veteran’s service-connected connected right foot disability, the evidence does not show that he has compensable symptoms of the disabilities that would entitle him to a separate compensable rating. A 10 percent rating under DC 5280 requires severe hallux valgus if equivalent to amputation of great toe or operated with resection of the metatarsal head. The VA examinations of record have noted the Veteran does not have these symptoms and experiences no symptoms from hallux valgus. Regarding hammer toes, DC 5282 requires that all toes be hammer toes for a compensable 10 percent rating, and the evidence of record has at most shown that four of the Veteran’s right toes are hammer toes, not that all toes are hammer toes. The record also reflects that the Veteran has right foot arthritis. Since it is unclear whether the arthritis is related to the right foot injury, the Board has considered whether the Veteran would be entitled to a separate rating based on arthritis, as DC 5003 does not provide for a rating in excess of 20 percent. However, the Board finds that a separate rating for arthritis is not warranted. The Veteran’s 20 percent rating under DC 5284 contemplates his symptoms of pain; therefore, assigning a separate 10 percent rating under DC 5003 would constitute pyramiding as he would be compensated twice for the same symptomatology. 38 C.F.R. § 4.14. Similarly, a separate evaluation would not be warranted under DC 5003 based on X-ray findings, as arthritis is already being compensated based on symptoms the arthritis causes, including pain and other factors in 38 C.F.R. § 4.59, such as functional impairment from pain on weight and nonweight bearing, swelling, disturbance of locomotion, interference with standing, and lack of endurance. See Southall-Norman, 28 Vet. App. 346. Hence, evaluation of right foot arthritis based on X-ray findings would not be appropriate. See 38 C.F.R. § 4.71a, DC 5003, Note (1). The Veteran does not have a diagnosis of or symptoms approximating weak foot (DC 5277), claw foot (DC 5278), metatarsalgia (DC 5279), hallux rigidus (DC 5281), or malunion or nonunion of the tarsal or metatarsal bones (DC 5283). Thus, evaluation under these DCs will not be further discussed. Additionally, the criteria used to evaluate the feet were recently revised, effective February 7, 2021, to provide evaluation of plantar fasciitis under new DC 5269. 85 Fed. Reg. 76453 (Nov. 30, 2020), rev’d 86 Fed. Reg. 8142 (Feb. 4, 2021). However, the evidence does not reflect that the Veteran has plantar fasciitis; therefore, a separate or higher rating under this new DC from the effective date of the revised regulation is not warranted. In sum, the criteria for a rating of 20 percent, but no higher, for a right foot metatarsal fracture are met during the pendency of the appeal. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).   Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Establishing service connection requires evidence of: (1) a current disability; (2) a disease, injury, or event in service; and (3) a causal link (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). Connecting the current disability to service may be accomplished through statutory presumption or through affirmative evidence that shows inception or aggravation during service or that otherwise indicates a direct relationship between service and the current disability. 38 C.F.R. § 3.303(a), (d). The statutory presumptions and VA regulations implementing them are intended to allow service connection for certain diseases when the evidence might otherwise not indicate service connection is warranted. See 38 C.F.R. § 3.303(d). Effective March 14, 2017, VA amended 38 C.F.R. §§ 3.307 and 3.309 providing a presumption of service connection for certain diseases based on exposure to contaminants present in the water supply at Camp Lejeune. The amendment defines “contaminants in the water supply” as the volatile organic compound trichloroethylene (TCE), perchloroethylene (PCE), benzene and vinyl chloride that were in the on-base water-supply systems located at United States Marine Corps Base Camp Lejeune, during the period beginning on August 1, 1953 and ending on December 31, 1987. In order to qualify for presumptive service connection under these provisions, there must be evidence of: (1) a diagnosis of one of the enumerated diseases under the new provision 38 C.F.R. § 3.309(f), (i.e., adult leukemia, aplastic anemia and other myelodysplastic syndromes, bladder cancer, kidney cancer, liver cancer, multiple myeloma, non-Hodgkin’s lymphoma, and Parkinson’s disease), if manifest to a degree of 10 percent or more at any time after service; and (2) service of at least 30 days (consecutive or nonconsecutive) at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987. The rulemaking applies to claims received by or pending before VA on or after March 14, 2017. See 82 Fed. Reg. 9, 4173-85 (Jan. 13, 2017). Military personnel records reflect that the Veteran was stationed at Camp Lejeune for more than 30 days from July to August 1979; thus, the Veteran is presumed to have been exposed to contaminants in the water supply in Camp Lejeune during the period beginning on August 1, 1953 and ending on December 31, 1987. 38 C.F.R. § 3.307(a)(7). However, the disabilities on appeal are not diseases listed in the regulation as entitled to presumptive service connection. Notwithstanding the presumption, service connection for a disability claimed as due to contaminated water at Camp Lejeune may be established by showing that a disorder resulting in disability was in fact causally linked to such exposure or otherwise due to service. Combee v. Brown, 34 F. 3d 1039, 1044 (Fed. Cir. 1994). Alternatively, service connection may be granted on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that it was either caused or aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a), (b); Allen v. Brown, 7 Vet. App. 439, 448-49 (1995) (en banc). 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). 2. Right Knee Disability The Veteran contends that he is entitled to service connection for a right knee disability, to include as secondary to a service-connected disability. In this case, May 2013 private treatment records note a diagnosis of right knee arthritis with a mild meniscal tear. Thus, the first element of Shedden is satisfied. Upon review of the record, the Board finds that the evidence is at least in equipoise that the Veteran’s right knee disability is related to his right foot disability. In August 2016, the Veteran was provided with a VA examination in which the examiner opined on the Veteran’s left knee but did not address the etiology of the right knee. In May 2020, the Veteran was provided with a VA examination in which the examiner opined that the Veteran’s right knee disability is less likely than not proximately due to or the result of a service-connected disability. She stated that the two conditions are not medically related because there is “no credible evidence to suggest than an injury or disease of the lower extremity … would have any significant impact on the Veteran’s right knee unless the injury to the foot resulted in major muscle or nerve damage causing partial or complete paralysis of the leg or shortening of the injured lower extremity resulting in a limb length discrepancy of more than four or five centimeters so that the individual’s gait has been altered to the extent that clinically there is an obvious lurching type gait.” She also cited medical literature discussing the mechanics of human pathological gait. She further explained that the Veteran’s right foot condition was not of the severity to result in a right knee condition. As the rationale reflects consideration of the nature of the Veteran’s disability and is supported by medical literature, the Board assigns a moderate to high degree of probative value to this opinion. In October 2020, VA received a private medical opinion from Family Nurse Practitioner G.U., who opined that it is at least as likely as not that the Veteran’s right knee condition is related to his right foot disability with associated compensatory walking strategies with biomechanical and kinematic changes. She noted that the Veteran has developed an antalgic gait pattern with limping and stated that the medical literature associates secondary biomechanical changes that cause abnormal kinetics to occur within both of the lower extremity joints and hastens the development and progression of the right knee condition, to include osteoarthritic changes. She then discussed medical literature which notes that an increased loading frequency reduces the ability to resist fracture during bending and may have implications in the early onset of osteoarthritis. She noted that all of the studies cited have provided data which demonstrate the progression of damage to cartilage under cyclic mechanical loading. As this rationale reflects consideration of the nature of the Veteran’s disability and is supported by medical literature, the Board assigns a moderate to high degree of probative value to this opinion. Accordingly, as the opinions in favor of and against the Veteran’s claims are entitled to equal weight of probative value, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s service-connected right foot disability caused his right knee disability. As such, the Board resolves all reasonable doubt in the Veteran’s favor and concludes that service connection for a right knee disability as secondary to a service-connected right foot disability is warranted. 38 U.S.C. §§ 1131, 5107; 38C.F.R. §§3.102, 3.310. 3. Lumbar Spine Disability The Veteran contends that he is entitled to service connection for a lumbar spine disability. An August 2016 VA examination notes that the Veteran has a diagnosis of lumbosacral strain and intervertebral disc syndrome. Thus, the first element of Shedden is satisfied. However, upon review of the record, the Board finds that the evidence preponderates against a finding that the Veteran’s lumbar spine disability was incurred in or is otherwise related to service. Further, the evidence weighs against a finding that the lumbar spine disability is proximately due to or aggravated by a service-connected disability. The August 2016 VA examiner noted that the Veteran reported that the condition began 30 years ago and that he has had back pain since service. The examiner opined that the Veteran’s back condition is less likely than not proximately due to or the result of the service-connected foot fracture. As explained in the prior remand, the examiner did not address the issue of aggravation. Further, the examiner did not provide a substantial rationale for this opinion. Thus, the Board assigns little to no weight of probative value to this opinion. In June 2020, the Veteran was provided with an additional VA examination in which the examiner opined that the condition is less likely than not incurred in or caused by service. The examiner noted that service treatment records were found to be negative for a lumbar spine condition during active duty. The examiner also opined that the condition is less likely than not proximately due to or the result of a service-connected condition and not at least as likely as not aggravated beyond its natural progression by a service-connected condition. She stated that the medical literature does not support the suggestion that the Veteran’s claimed lumbar spine condition is subject to aggravation by the right foot metatarsal fracture because there is no pathophysiology to support a mechanism for aggravation. As this rationale reflects consideration of the nature of the Veteran’s disability and is supported by medical literature, the Board assigns a moderate to high degree of probative value to this opinion. The Board acknowledges the lay statements provided by the Veteran which contend that his lumbar condition is related to the in-service event in which his foot was run over. The Board notes that the contemporaneous records of the incident do not note any such symptoms relating to the back. During the hearing, the Veteran stated that he did in fact experience such symptoms in his back but that they were not noted because his foot underwent the most significant damage from the incident. He also stated that his current lumbar spine disability is due to this incident. Generally, the absence of contemporaneous medical records does not, in and of itself, necessarily weigh against lay statements. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the Board finds that these lay statements do not competently establish that service connection is warranted. The Veteran, as a lay person, is not competent to opine on the etiology of his lumbar spine condition because the complexity of the issue requires the education, training, and expertise of a medical professional who is qualified to offer a medical opinion. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, May 2016 treatment records note low back pain and state that the Veteran was involved in a motor vehicle collision approximately 4 to 5 years ago and that, since then, he has had worsening neck and low back pain. Due to the complexity of the history of the low back condition, and for the other reasons discussed above, the Board cannot assign significant probative value to the Veteran’s lay statements for the purpose of establishing service connection. Additionally, the record contains no evidence which reflects that the lumbar spine disability manifested to a compensable degree within a year of separation or was otherwise noted in service with continuity thereafter. The Board notes that the record contains treatment records from January 1983 which note “recurrent back pain.” However, the record does not reflect that such symptoms were noted during the applicable period in the service treatment records or within years of the in-service event discussed above. In reaching this conclusion, the Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran’s claim for service connection, the benefit-of-the-doubt rule is not for application, and the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 4. Cervical Spine Disability The Veteran contends that he is entitled to service connection for a cervical spine disability. An August 2016 VA examination notes a diagnosis of cervical strain and intervertebral disc syndrome. Thus, the first element of Shedden is satisfied. However, upon review of the record, the Board finds that the evidence weighs against a finding that the Veteran’s cervical spine disability was incurred in or is otherwise related to service. Further, the evidence weighs against a finding that the cervical spine disability is proximately due to or aggravated by a service-connected disability. The August 2016 VA examiner opined that the Veteran’s claimed neck condition is less likely than not proximately due to or the result of a service-connected condition because his neck condition is not related to the foot fracture. As explained in the prior remand, the examiner did not address the issue of aggravation. Thus, the Board assigns little to no probative value to this opinion. The Veteran was provided with an additional VA examination in June 2020 in which the examiner opined that the condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. She stated that service treatment records are negative for a documented cervical spine condition during active duty. She opined that the condition is less likely than not proximately due to a service-connected disability. She stated that the two conditions are not medically related and that there is no credible evidence to suggest than an injury or disease of a lower extremity would have any significant impact on the cervical spine because there is no pathophysiology to support any connection between a foot injury and the cervical spine. She also stated that it is not at least as likely as not that the condition is aggravated by a service-connected disability. She stated that medical literature does not support the suggestion that a neck condition is subject to aggravation beyond the natural progression by the right foot second metatarsal fracture, as there is no pathophysiology to support a mechanism for aggravation. As this rationale reflects consideration of the nature of the Veteran’s disability and is supported by medical literature, the Board assigns a moderate to high degree of probative value to this opinion. As discussed above, the Board acknowledges the lay statements provided by the Veteran which contend that his cervical condition is related to the in-service event in which his foot was run over. The absence of contemporaneous medical records does not, in and of itself, necessarily weigh against lay statements. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Further, the Board notes that July 2012 private treatment note a history of neck pain. However, for the reasons explained above, the Board cannot assign significant probative value to the Veteran’s lay statements for the purpose of establishing service connection. Additionally, the record contains no evidence which reflects that the cervical spine disability manifested to a compensable degree within a year of separation or was otherwise noted in service with continuity thereafter. In reaching this conclusion, the Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran’s claim for service connection, the benefit-of-the-doubt rule is not for application, and the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 5. Bilateral Upper Extremity Radiculopathy The Veteran contends that he is entitled to service connection for bilateral upper extremity radiculopathy. An August 2016 VA examination notes a diagnosis of bilateral upper extremity radiculopathy. Thus, the first element of Shedden is satisfied. In August 2016, the Veteran was provided with a VA examination in which the examiner stated that the “left side nerve condition” is less likely than not proximately due to or the result of a service-connected condition because nerve condition is not related to a foot fracture. As explained in the prior remand, the examiner did not address the issue of aggravation. Thus, the Board assigns little to no probative value to this opinion. In May 2020, the Veteran was provided with an additional VA examination in which the examiner opined that the condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. She stated that service treatment records are negative for any upper extremity radiculopathy during active duty. She also opined that the condition is less likely than not proximately due to or aggravated beyond its natural progression by a service-connected condition. She stated that the upper extremity radiculopathy is a complication of the non-service-connected cervical spine degenerative disc disease and not caused by or secondary to any foot condition. She also stated that there is no pathophysiology to support a mechanism for aggravation. As this rationale reflects consideration of the nature of the Veteran’s disability and the record as a whole, the Board assigns a moderate to high degree of probative value to this opinion. Accordingly, the Board finds that the evidence preponderates against a finding that the Veteran’s bilateral upper extremity radiculopathy was incurred in service or is otherwise related to an in-service injury, event, or illness. Further, the evidence preponderates against a finding that the Veteran’s condition is proximately due to or a service-connected disability, to include the right foot disability. In reaching this conclusion, the Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran’s claim for service connection, the benefit-of-the-doubt rule is not for application, and the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND Entitlement to a TDIU is remanded. As previously noted, the issue of entitlement to TDIU has been raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Because the AOJ has not yet considered whether the Veteran is entitled to TDIU, the issue must be remanded to the AOJ for initial adjudication. The record also reflects the Veteran receives VA treatment; thus, updated VA treatment records should be associated with the claims file. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from December 2020 to the present. 2. Provide the Veteran with appropriate notice and assistance regarding the issue of entitlement to a TDIU rating. Specifically, the Veteran should be informed as to the information and evidence necessary to substantiate the claim for a TDIU rating, including which evidence, if any, the Veteran is expected to obtain and submit, and which evidence will be obtained by VA. The Veteran should be asked to complete and submit a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Individual Unemployability. 3. Adjudicate the matter of whether the Veteran is entitled to TDIU, to include consideration of whether referral for an extraschedular rating is warranted under 38 C.F.R. § 4.16(b) for any period where the schedular criteria of § 4.16(a) are not met. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. H. White, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.