Citation Nr: 21032284 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 15-22 780 DATE: May 26, 2021 ORDER Entitlement to rating in excess of 10 percent for a service-connected right hip disability is DENIED. Entitlement to service connection for asthma is DENIED. Entitlement to service connection for inflammation to the ball of the right foot is DENIED. REMANDED Entitlement to service connection for a cervical spine disability is REMANDED. Entitlement to service connection for a left-hand disability is REMANDED. FINDINGS OF FACT 1. During the claim period, at worst, the Veteran demonstrated 60 degrees of right hip flexion, 10 degrees of extension, 25 degrees of abduction, and 10 degrees of adduction. The Veteran did not demonstrate right hip ankylosis, flexion limited to 45 degrees, abduction limited to 15 degrees, flail, malunion or nonunion, or an inability to cross legs at any point during the claim period. 2. The Veteran's childhood asthma was noted at entry into active-duty service in 1985, but it did not increase in severity during active-duty service. 3. The weight of the evidence is against a finding that the Veteran's currently diagnosed right foot hallux rigidus either began during, or was otherwise caused by, his active-duty service in the United States Army. CONCLUSIONS OF LAW 1. On and after August 20, 2012, the criteria for a rating in excess of 10 percent for the service-connected right hip disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.25, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5250 thru 5255 (2020). 2. The Veteran's pre-existing asthma was not aggravated during active service in the United States Army. 38 C.F.R. § 38 U.S.C. §§ 1131, 1153, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2020). 3. The criteria for service connection for a right foot disability have not been satisfied. 38 U.S.C. §§ 1101, 1131, 1133, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from August 1985 to December 1985. The Veteran completed additional service in the Army National Guard during the period from February 1985 to August 2012. INCREASED RATINGS, GENERALLY Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). The Board must also assess the competence and credibility of lay statements and testimony. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In increased rating claims, a Veteran's lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev'd on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). The Veteran is uniquely suited to describe the severity, frequency, and the duration of the symptoms that accompany his service-connected right hip disability. See Falzone v. Brown, 8 Vet. App. 398 (1995); Heuer v. Brown, 7 Vet. App. 379 (1995). As noted above, the Veteran's entire history is reviewed when assigning a disability evaluation. 38 C.F.R. § 4.1. However, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board must consider whether there have been times when his disabilities on appeal have been more severe than at others, and rate them accordingly. 1. Entitlement to rating in excess of 10 percent for a service-connected right hip disability is denied. In September 2013, the agency of original jurisdiction (AOJ) issued a rating decision. Therein, the AOJ granted service connection for right hip strain, assigning a non-compensable evaluation. In February 2014, the Veteran submitted a notice of disagreement (NOD), contesting the non-compensable rating. In June 2015, the AOJ issued a rating decision, which increase the rating for the service-connected right hip disability to 10 percent. During the claim period, the Veteran's service-connected right hip disability was rated under 38 C.F.R. § 4.71A, Diagnostic Codes (DCs) 5003-5251, 5252, and 5253. On and after August 20, 2012, the Veteran was rated as 10 percent disabled under DCs 5003-5251. On and after August 18, 2018, the Veteran received non-compensable ratings under DCs 5252 (Flexion Limit) and 5253 (Impairment of Thigh). Under DC 5250, a rating of 60 percent is assigned for ankyloses of the hip where it is favorable in flexion at an angle between 20 degrees and 40 degrees, and slight adduction or abduction. A rating of 70 percent is assigned upon intermediate ankyloses and a rating of 90 percent is awarded upon unfavorable ankylosis, extremely unfavorable ankylosis with the foot not reaching ground, crutches necessitated. 38 C.F.R. § 4.71A. Under DC 5251 (limitation of extension of the thigh), a rating of 10 percent is assigned when extension is limited to 5 degrees. Id. Under DC 5252, ratings for limitation of flexion of the thigh are assigned as follows: flexion limited to 45 degrees is 10 percent; flexion limited to 30 degrees is 20 percent; flexion limited to 20 degrees is 30 percent rating; and flexion is limited to 10 degrees is 40 percent. Id. Under DC 5253, where there is limitation of rotation of the thigh to the point that the claimant cannot toe-out more than 15 degrees, a 10 percent evaluation is assigned. A 10 percent rating is also assigned where there is limitation of abduction to the point at which the claimant cannot cross his legs. A 20 percent rating is assigned where there is limitation of abduction of the thigh, motion lost beyond 10 degrees. Id. Diagnostic Code 5254 provides an 80 percent rating will be assigned for hip flail joint. Id. Diagnostic Code 5255 provides an 80 percent rating will be assigned for impairment of femur, fracture shaft or anatomical neck, with nonunion, with loose motion (spiral or oblique fracture); a 60 percent rating will be assigned for impairment of femur with nonunion, without loose motion, weight bearing preserved with aid of brace, or for fracture of surgical neck of the femur with false joint; a 30 percent rating will be assigned for malunion of the femur with marked knee or hip disability; a 20 percent rating will be assigned for malunion of the femur with moderate knee or hip disability; and a 10 percent rating will be assigned for malunion of the femur with slight knee or hip disability. The Board notes that normal hip motion is defined as flexion from zero to 125 degrees and abduction from zero to 45 degrees. See 38 C.F.R. § 4.71, Plate II. In September 2013, the Veteran underwent a VA examination that considered the current severity of the service-connected right hip disability. The VA examiner reported a diagnosis for a right hip strain. The Veteran relayed that he was unable to sit in chairs for long periods of time due to flare-ups. The Veteran demonstrated the following initial range of motion (ROM) in degrees: 105 flexion, greater than 5 extension, and greater than 10 abduction. The Veteran was able to cross legs and toe-out more than 15 degrees. The Veteran did not demonstrate ROM loss after repetitive testing. For function loss, the examiner reported less movement than normal and interference with sitting, standing and/or weight bearing. The Veteran not demonstrated tenderness or pain during joint palpation. The Veteran demonstrated 5/5 muscle strength, and ankylosis was not observed. The Veteran did not demonstrate malunion or nonunion of femur, fail hip, or a leg length discrepancy. The Veteran reported regular use of a cane for locomotion. The examiner remarked that adduction ends at 20 degrees, abduction ends at 40 degrees, internal rotation ends at 40 degrees, external rotation ends at 50 degrees, post-test adduction ends at 20 degrees, post-test abduction ends at 40 degrees, post-test internal rotation ends at 40 degrees, and post-test external rotation ends at 50 degrees. The examiner noted "no objective evidence of painful motion" through all movement planes. In April 2015, the Veteran underwent a VA examination that considered the current severity of the service-connected right hip disability. The VA examiner reported diagnoses for right femoral acetabular impingement syndrome and degenerative arthritis. The Veteran reported that he was unable to walk during a flare-up, and he would lie down until it resolves. The examiner reported functional loss included a reduced ability to walk, stand, sit, change positions, squat, and an inability to run or jump. The Veteran demonstrated the following initial ROM (in degrees): 70 flexion, 30 extension, 30 abduction, 25 adduction, and 35 external and internal rotation. The Veteran's adduction was not limited such that he was unable to cross legs. The Veteran demonstrated crepitus and tenderness during palpation. He also demonstrated objective pain on weight bearing and in all ROM planes. The Veteran did not demonstrate additional function loss after 3 repetitions. The examiner noted that pain, fatigue, weakness, lack of endurance, and incoordination significantly limited functional ability with repeated use over time. The examiner relayed the following ROM (in degrees): 60 flexion, 20 extension, 25 abduction, 20 adduction, and 30 external and internal rotation. The examiner noted that pain, fatigue, weakness, lack of endurance, and incoordination significantly limited functional ability during a flare-up. The Veteran relayed that severe flare-ups occurred 2 to 3 times each week, and they lasted 2 to 4 hours. The examiner relayed the following ROM (in degrees): 60 flexion, 20 extension, 25 abduction, 20 adduction, and 30 external and internal rotation. The examiner reported the following additional symptoms: less movement than normal, weakened movement, instability of station, disturbance of locomotion, and interference with sitting and standing. The Veteran demonstrated 4/5 muscle strength with no atrophy noted. The Veteran did not demonstrate ankylosis. The examiner did not note the presence of malunion or nonunion of femur, flail hip, or a leg length discrepancy. The Veteran reported constant use of a brace for normal locomotion. On August 15, 2018, the Veteran underwent a VA examination that considered the current severity of the service-connected right hip disability. At that time, the Veteran reported sharp intermittent pain in his anterior right hip daily, up to 8 or 9 out of 10 in severity, lasting during weightbearing activities and then for 15 minutes following rest. The Veteran reported that sitting was limited to 20 minutes at a time, walking was limited to one-third mile at a time, standing was limited to 30 to 45 minutes at a time if he could move around a bit while standing, and he was unable to bend, run, or perform any heavy lifting. He reported that he always walks with a walker or trekking poles. The Veteran demonstrated the following initial ROM (in degrees: flexion 80, extension 20, abduction 40, adduction 20, external rotation 50, and internal rotation 30. Adduction was not limited such that the Veteran could not cross his legs. The range of motion itself contributed to a functional loss in that he was unable to bend. Passive range of motion was the same as active range of motion. The Veteran demonstrate pain in ROM planes. There was no objective evidence of localized tenderness or pain on palpation. There was objective pain noted during weightbearing, but no evidence of crepitus. The Veteran demonstrated objective evidence of pain non-weightbearing. After repetitive use testing, the following ROM was reported (in degrees): flexion 70, extension 10, abduction 30, adduction 10, external rotation 40, and internal rotation 20. The post-test adduction was not limited such that the Veteran could not cross his legs. The examiner noted that pain significantly limited functional ability with repeated use over a period of time and during flare-ups. For both, the examiner reported the following ROM values (in degrees): flexion 70, extension 10, abduction 30, adduction 10, external rotation 40, and internal rotation 20. Additional contributing factors of disability included less movement than normal, and interference with sitting and standing. Muscle strength testing was 5/5, and there was no muscle atrophy or ankylosis of the joint. The Veteran did not demonstrate malunion or nonunion of femur, flail hip, or a leg length discrepancy. In August 2019, the Veteran supplied sworn testimony to the undersigned Veterans' Law Judge (VLJ). The Veteran testified that his service-connected right hip disability prevented him from driving long distances (220 to 300 miles) to fulfill work-related tasks. The Veteran testified that the right hip disability hampered his ability to bowl, reducing the number of games played and weight of the bowling ball. The Veteran testified that, "(s)teps are becoming a lot shorter . . . and it's more like a half step versus the full stepping stride that used to be in the military." The Veteran testified that, "my pain rating I would say is staying at a pretty high level, 9 to 10 because I'm using the blackout as sitting around 11. . .. The balance and the fact that the hip gives out and I lose control of the leg has been increasing for most of this year. . .." When questioned by the undersigned, the Veteran relayed that he did not currently receive treatment for his right hip disability, but he did undergo acupuncture for the lower back at the VA Rocky Mountain Regional facility. In February 2020, the Board addressed the Veteran's claim for rating in excess of 10 percent for the service-connected right hip disability. At that time, the Board observed that the record suggested that the Veteran's right hip disability had increased in severity since the August 2018 VA examination. The Board remanded the claim to obtain a VA examination report that addressed the current severity of the Veteran's right hip disability. In November 2020, the Veteran underwent a VA examination that addressed the severity of the service-connected right hip disability. The VA examiner noted diagnoses for right hip degenerative arthritis, strain, and labral tear repair with residual pain and decreased ROM. The Veteran reported that he could walk slowly with an assistive walker or trekking poles, but he must rest every two minutes. He also reported that he could stand "for some time," but he must have a wall and continuously shift position. The Veteran demonstrated the following initial ROM (in degrees): flexion 90, extension 30, abduction 45, adduction 25, and external and internal rotation 35. The Veteran did not demonstrate an inability to cross legs during adduction. The Veteran demonstrated objective pain during flexion, extension, abduction, and adduction, but he did not demonstrate tenderness or pain during joint palpation. The Veteran did not demonstrate ROM loss after three repetitions. The examiner reported that pain significantly limited functional ability with repeated use over time. The following ROM of values were reported (in degrees): flexion 80, extension 20, abduction 35, adduction 15, and external and internal rotation 35. The examiner reported that pain, weakness, fatiguability or incoordination did not significantly limit functional ability during flare-ups. The examiner noted that the Veteran was unable to stand, walk or sit for prolonged periods. The Veteran demonstrated 5/5 muscle strength, and no atrophy was noted. The Veteran did not demonstrate malunion or nonunion of femur, flail hip, or a leg length discrepancy. The Veteran did not demonstrate ankylosis. The examiner noted regular of a walker, and occasional use of trekking poles, for locomotion. The Veteran demonstrated right hip pain during non-weight bearing. The following ROM values were demonstrated (in degrees): flexion 110, extension 30, abduction 45, adduction 25, and external and internal rotation 35. During the claim period, the Veteran's government and non-government treatment records have been associated with the claims file on numerous occasions, to include those generated at the Rocky Mountain Regional VA Medical Clinic (VAMC), Denver VAMC, Eastern Colorado Healthcare System (HCS), and Kaiser Permanente. The Veteran's medical records from the Social Security Administration (SSA) have also been associated with the claims file. After review of the claims file, the Board observes that the VA examination reports and treatment records do not indicate that the Veteran demonstrated right hip ankylosis, flexion limited to 45 degrees, abduction limited to 15 degrees, flail, malunion or nonunion, or an inability to cross legs at any point during the claim period. At worst, the records reflect that the Veteran demonstrated 60 degrees of right hip flexion, 10 degrees of extension, 25 degrees of abduction, and 10 degrees of adduction. As the record does not show limitation of flexion to 30 degrees or less at any time during the course of the appeal, a rating greater than 10 percent under Diagnostic Code 5252 is not met. As the record does not show limitation of extension of 5 degrees at any time during the course of the appeal, a separate compensable rating under Diagnostic Code 5251 is not met. As the record does not show limitation of abduction adduction such that the Veteran could not cross his legs or motion lost beyond 10 degrees or limitation of rotation such that the Veteran could not toe-out more than 15 degrees, a separate compensable rating under Diagnostic Code 5253 is not warranted. Ultimately, the Board finds that the preponderance of the evidence stands counter to the Veteran's claim for a rating in excess of 10 percent for the service-connected right hip disability. Since the preponderance of the evidence is against this claim, the provisions of 38 U.S.C. § 5107(b), regarding reasonable doubt, are not applicable. The Veteran's claim for a rating in excess of 10 percent for the service-connected right hip disability must be denied, because the preponderance of the evidence weighs against his claim. The Board notes that the Veteran and his attorney have not raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). SERVICE CONNECTION Service connection may be established for disability resulting from personal injury suffered or disease contracted while in the active military, naval, or air service. 38 U.S.C. § 1110. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In each case where service connection for any disability is sought, due consideration shall be given to the places, types, and circumstances of the Veteran's service as shown by the Veteran's service record, the official history of each organization in which the Veteran served, the Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154 (a). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for asthma is denied. In August 2012, the Veteran submitted a VA Form 21-526. Thereby, the Veteran initiated a claim for service connection for asthma. Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111 (West 2014). To rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder preexisted service and there must be clear and unmistakable evidence that the disorder was not aggravated by service. The Veteran 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. VAOPGPREC 3-2003 (July 16, 2003); Jordan v. Principi, 17 Vet. App. 261 (2003); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Where a preexisting disease or injury is noted on the entrance examination, section 1153 provides that, "(a) preexisting injury or disease will be considered to have been aggravated by active military, naval, or air 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 (West 2014); 38 C.F.R. § 3.306 (a). For Veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306 (b). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). In February 1985, during the active-duty enlistment physical, the Veteran reported a medical history that included asthma. The military medical provider noted the following: "asthma. Age 2-6 yrs. No attacks older than 6 yrs." In February and December 2012, the Veteran's service treatment records (STRs) were associated with the claims file. Therein, the Veteran reported a history of childhood asthma on multiple occasions during examinations in the Army National Guard. In January 1989, the Veteran reported that he did not have asthma after 12-years of age. In September 2011, a military provider noted that, "use of inhaler when needed and prior to cardio exercise." The provider noted a history of asthma after the age of 2 years, which was identified as chronicbut stableexercise-induced asthma. In October 2011, a notation from Orthopedic Surgery Associates, PC identified well-controlled asthma. In September 2013, the Veteran underwent a VA examination that considered the nature and etiology of any currently endured respiratory conditions. The examiner reported a 2013 diagnosis for exercised induced asthma. The examiner supplied the following medical history: "the condition began in 2002. The claimant reports he had shortness of breath, tightness in his chest and wheezing. The claimant reports being diagnosed with exercise induced asthma. This was diagnosed 2002. It was diagnosed by a military provider. The current symptoms are shortness of breath, tightness in his chest and wheezing when he does not use albuterol." In August 2019, the Veteran supplied sworn testimony to the undersigned VLJ. The Veteran testified that he was diagnosed with asthma at two years of age. The Veteran testified that he had an asthma "attack" at age twelve, which was triggered by wood shellac. The Veteran testified that his next asthma-related incident occurred during a National Guard physical training (PT) test in "about 2000." After the incident, the Veteran testified that he utilized an albuterol inhaler during PT tests, road marches, and current VA adaptive cycling therapy. When questioned by the undersigned, the Veteran relayed that he utilized an inhaler during intense activity, which is every two weeks. In February 2020, the Board addressed the Veteran's claim for service connection for asthma. At that time, the Board noted that the September 2013 VA examiner did not address the Veteran's identified asthma prior to entrance on active duty, which rendered the opinion inadequate. The Board remanded the claim to the AOJ to obtain an addendum opinion on the etiology of the Veteran's current asthma. In November 2020, the Veteran underwent a VA examination that addressed the nature and etiology of respiratory conditions. The VA examiner noted a diagnosis for childhood asthma. The examiner noted that the Veteran wheezed while running in high school, between 1975 and 1979. The examiner noted that the Veteran did not wheeze while running when he enlisted in 1985. The examiner noted that the Veteran currently endured shortness of breath during bike rides over 5 miles, and he utilized Albuterol for treatment on those occasions. The examiner reported that the Veteran currently endures asthma. The examiner relayed that, "veteran reported that he had asthma as a child and then he had no symptoms until 1997. In 1997, he had difficulty breathing and wheezing with running. He was treated with an inhaler, which helped. Although date of onset is not consistent with the history in the C-file, the date of onset in 1997, is nevertheless not during active duty." The examiner noted that, "Veteran reports that he has symptoms as a child, no symptoms at time of enlistment in 1985, and no symptoms until 1997." The examiner opined that, "(b)ased on the available information, his asthma did not become symptomatic again until 1997 or 2002-2006, and both time periods are many years after his period of active duty which ended in 1985. Therefore, the claimed condition, asthma, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness." Initially, the Board notes that the Veteran endured a pre-active duty service history of asthma. Consequently, the first element for this service-connection claim has been substantiated. See 38 U.S.C. § 1111. During the claim period, the Veteran's government and non-government treatment records have been associated with the claims file on numerous occasions, to include those generated at the Rocky Mountain Regional VAMC, Denver VAMC, Eastern Colorado HCS, and Kaiser Permanente. The Veteran's medical records from the SSA have also been associated with the claims file. After review, the Board observes that the treatment reports do not contain a notation to support a conclusion that the Veteran's pre-service asthma was aggravated beyond its natural course during active duty service in the United States Army. Additionally, the Board notes that the November 2020 VA examiner opined that the Veteran's asthma, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. Consequently, the Board finds that final requisite element for this service-connection claim has not been substantiated. See id. Ultimately, the Board finds that the preponderance of the evidence stands counter to the Veteran's claim for service connection for asthma. Since the preponderance of the evidence is against this claim, the provisions of 38 U.S.C. § 5107(b), regarding reasonable doubt, are not applicable. The Veteran's claim for service connection for asthma must be denied, because the preponderance of the evidence weighs against his claim. 2. Entitlement to service connection for inflammation to the ball of the right foot is denied. In August 2012, the Veteran submitted a VA Form 21-526. Therein, the Veteran initiated a claim for service connection for inflammation to the ball of the right foot. Again, service connection is generally substantiated with (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson, 12 Vet. App. at 253. In February and December 2012, and September 2017, the Veteran's STRs were associated with the claims file. Therein, a Screening Note of Acute Medical Care was added on September 5, 1985. At that time the, military provider noted that, "pain in (r) foot, PT has to walk on his heels, possible stress fracture . . .." During a January 1989 periodic examination, the military provider noted that, "the base of right foot sore during basic training, 1985, no trouble since." In September 2013, the Veteran underwent a VA examination that considered the nature and etiology of any currently endured foot conditions. The VA examiner did not diagnose a current right foot condition. The examiner remarked that, "there is no objective evidence of right foot condition with inflammation presently." The examiner opined that, "for the claimant's claimed condition of right foot condition with inflammation, there is no diagnosis because there is no pathology to render a diagnosis." In August 2018, the Veteran underwent a VA examination that considered the nature and etiology of any currently endured bilateral foot conditions, including Pes Planus. The VA examiner reported a diagnosis for bilateral hallux rigidus. The examiner noted a 2015 date of onset for the diagnosed right foot condition. The examiner also noted that, "he reports that he has less pain in his feet because he is not walking as much due to right hip pain." The examiner relayed that, "veteran continues to walk with an antalgic gait, favoring his left side, due to right hip pain. This altered gait, favoring the left side, likely contributed to excessive stress and strain on his left foot, leading to inflammation and eventually, hallux rigidus in the left foot. Although this condition is bilateral, it is more severe in the left foot based on veteran's medical history. He reports more pain in the left foot compared to the right." The examiner did not opine on the etiology of the current right foot hallux rigidus. In August 2019, the Veteran supplied sworn testimony to the undersigned VLJ. The Veteran testified that he sustained a right foot injury during basic training. The Veteran testified that, "the boots that they gave me was only size eight and I had always been measured out to a nine-and-a-half foot. So literally the second day after the uniform issue, I went on sick call for my foot not even fitting in the boots anymore type situation. The ball of the foot grew in relationship to the rest of the foot." The Veteran testified that his right foot has continued to bother him after his injury in basic training. During the appellate period, the Veteran has stated that his right foot is painful. The Veteran is competent to report this pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, identification of the etiology for the currently diagnosed hallux rigidus requires education, training, and experience that simply falls outside the realm of common knowledge of a lay person. See id. In February 2020, the Board addressed the Veteran's claim for service connection for inflammation to the ball of the right foot. At that time, the Board found the August 2018 VA examination was not adequate. The Board observed that the VA examiner failed to opine on whether the Veteran's current right foot hallux rigidus is at least as likely as not (50 percent probability or greater) related to the Veteran's active duty injury in September 1985. The Board remanded the claim to the AOJ to obtain an adequate addendum opinion. In November 2020, the Veteran underwent a VA examination that addressed the nature and etiology of foot conditions. The VA examiner noted a diagnosis for right foot hallux rigidus. The Veteran relayed that he was issued boots that were too small in basic training and, consequently, his right foot was painful and swelled. The Veteran relayed that the pain returned in 2014, and he was diagnosed with bilateral hallux rigidus in 2017. The VA examiner opined that, "there is no evidence to provide a nexus from service to current condition, which was diagnosed in 2017. Right hallux rigidus was less likely than not (less than 50 percent probability) incurred in or caused by the September 1985 injury during service." During the claim period, the Veteran's government and non-government treatment records have been associated with the claims file on numerous occasions, to include those generated at the Rocky Mountain Regional VAMC, Denver VAMC, Eastern Colorado HCS, and Kaiser Permanente. The Veteran's medical records from the SSA have also been associated with the claims file. After review, the Board observes that the treatment reports do not contain a notation to support an etiological relationship between the Veteran's active-duty right foot injury and the currently diagnosed hallux rigidus. The Veteran maintains a current diagnosis for right foot hallux rigidus. The Veteran's STRs reflect an active-duty injury to the right foot. Consequently, the first two requisite elements for direct service connection have been substantiated. See Hickson, 12 Vet. App. at 253. However, after review of the claims file, the Board concludes that it does not contain a competently identified nexus between the Veteran's in-service, active-duty injury and the currently diagnosed right foot hallux rigidus. Consequently, the final requisite element for direct service connection has not been substantiated. See id. Ultimately, the Board finds that the preponderance of the evidence stands counter to the Veteran's claim for service connection for a right foot disability. Since the preponderance of the evidence is against this claim, the provisions of 38 U.S.C. § 5107(b), regarding reasonable doubt, are not applicable. The Veteran's claim for service connection for a right foot disability must be denied, because the preponderance of the evidence weighs against his claim. REASONS FOR REMAND Upon review of the record, the Board concludes that further evidentiary and procedural development is necessary. Although the Board sincerely regrets this delay and is appreciative of the Veteran's service to his country, a remand is necessary to ensure VA provides the Veteran with appropriate assistance and procedure prior to final adjudication. 4. Entitlement to service connection for a cervical spine disability is remanded. In January 2018, the Veteran submitted a VA Form 21-526b. Thereby, the Veteran initiated a claim for service connection for cervical spine condition. In September 2019, the Board addressed the Veteran's claim for service connection for a cervical spine disability. At that time, the Board remanded the claim to the AOJ for issuance of a statement of the case (SOC). In October 2019, the AOJ issued a SOC, which continued to deny service connection for a cervical spine disability. In December 2019, the Veteran submitted an Appeal to the Board of Veterans' Appeals. The Board observes that additional medical records have been associated with the Veteran's electronic claims folder since the AOJ issued the SOC on October 13, 2019. After issuance of the SOC, pertinent treatment records were associated with the claims file from the Denver VA clinic and Rocky Mountain VAMC. Since these records were added to the Veteran's claims file after issuance of the SOC, and it is clear that the AOJ did not review these records, a Supplemental Statement of the Case (SSOC) must be furnished to the Veteran and his counsel. See 38 C.F.R. § 19.31. If the Board were to consider this evidence in the first instance, this potentially could be prejudicial because the Veteran, in effect, would "lose one bite of the apple," meaning the benefit of one level of judicial review. Cf., Bernard v. Brown, 4 Vet. App. 384 (1993). Thus, the Board concludes that the AOJ should have the opportunity to review the records from the Denver VA clinic and Rocky Mountain VAMC and issue a SSOC. See 38 C.F.R. § 19.37 (b). The Board may not consider additional evidence not previously reviewed by the AOJ, unless a waiver of initial AOJ review is obtained from the Veteran. Disabled American Veterans, et. al. v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003); 38 C.F.R. § 20.1304 (c). The Veteran has not submitted a waiver of AOJ consideration of the new evidence received since issuance of the October 2019 SOC, and the AOJ has not issued an SSOC with consideration of the newly received evidence. On remand, the AOJ jurisdiction should issue a SSOC that considers all the evidence received since the October 2019 SOC. In reaching this conclusion, the Board observes that the Veteran filed his substantive appeal on December 20, 2019. For all substantive appeals received on or after February 2, 2013, if, either at the time or after the AOJ receives a substantive appeal, the claimant or the claimant's representative submits evidence to either the AOJ or the Board for consideration in connection with the issues on appeal, such evidence shall be subject to initial review by the Board unless the claimant or the claimant's representative requests in writing that the AOJ initially review such evidence. See Section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154 (amending 38 U.S.C. § 7105 by adding new paragraph (e)). However, as this evidence does not appear to have been submitted by either the Veteran or his counsel, the claim must be remanded to the AOJ for readjudication with consideration of the newly received evidence. 5. Entitlement to service connection for a left hand disability is remanded. In August 2012, the Veteran submitted a VA Form 21-526. Therein, the Veteran initiated a claim for connection for "smashed fingers," which occurred when a door was shut on his hand while unloading a train. In December 2012, the Veteran's service treatment records (STRs) were associated with the claims file. After review, the Board observes that a line of duty (LOD) was created for the 3rd and 4th digits of the Veteran's left hand on June 14, 1986. The military treatment record indicates that the left hand was smashed in a door. At that time, imaging studies of the left hand did not reveal an obvious fracture and/or dislocation. In September 2013, a Radiology Interpretation was associated with the claims file. Therein, it was reported that oblique and lateral views of the left hand show no evidence for fracture or other significant bone or soft tissue abnormality. The provider delivered the following impression: "(t)he visualized soft tissues and bony structures are radiographically within normal limits." In September 2013, the Veteran underwent a VA examination that considered he nature and etiology of any currently endured hand and finger conditions. The examiner did not report any currently endured hand or finger conditions. The examiner noted the following medical history: "the condition began on 1986. The claimant reports he smashed his finger in a truck door. The claimant is unsure if, to date, the condition has been formally diagnosed." The examiner opined that, "there is no objective evidence to render a Dx for left hand condition status post two middle finger injury (smashed)." In August 2017, the Veteran's treatment records form the Denver VAMC were associated with the claims file. Therein, in a May 2015 Hand PA Clinic Note, the provider reported that, "left hand tingling/numbness of sf rf and some in other fingers . . .." In August 2019, the Veteran supplied sworn testimony to the undersigned VLJ. The Veteran testified that, "during a deployment out to California, we shipped all our equipment by rail. . . . And my left hand was actually holding onto the doorframe and the guard at the door didn't realize my hand was actually in the doorframe and closed the door onto my hand at which point they --everybody panicked and of course the officer trying to settle everybody down and open the door as easily as possible so I wouldn't fall off the train." The Veteran relayed that the left hand was treated at Camp Roberts on June 12, 1986. The Veteran testified that, "the two middle fingers of the left hand of course don't bend with the rest of the hand under a normal flexation-type situation. I can force them to close, but it's extremely tight and I have dropped several things using my left hand when I have to pick up two items at a time. And when the weather gets cold, the pain from the tips of the fingers on down is a lot more than the rest of the hands a lot of times." The Veteran testified that the surgeon who performed his carpal tunnel surgery indicated that, "testing of my fingers to do his evaluation of how bad my hands were, he noticed that my left two fingers did not have as much sensitivity as the rest of them basically from a poking test." The Veteran testified that after the injury that, "it hasn't been totally useless. So most of what I deal with, it hindered it. But it did not block me from doing a lot of the day-to-day functionality." When questioned by the undersigned, the Veteran relayed he has been unable to normally bend the injured fingers after the train incident in 1986. The Board notes that the Veteran testified that his left hand is painful and lacks sensitivity. The Veteran is competent to report this pain and lack of sensation. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In February 2020, the Board addressed the Veteran's claim for service connection for a right hand disability. At that time, the Board observed that the Veteran's August 2019 testimony suggested the existence of potentially relevant medical records. The Board remanded the claim to the AOJ to obtain records from the Veteran's non-government surgical provider. The Board also directed the AOJ to secure a VA examination report that addressed the nature and etiology of any currently endured left hand disability. In July and September 2020, the AOJ mailed the Veteran subsequent development letters. Therein, the AOJ notified the Veteran that his authorization was needed to obtain treatment records from private / non-VA healthcare providers. On both occasions, the AOJ supplied the Veteran VA Forms 21-4142 and -4142a. The Board notes that the duty to assist is a two-way street. If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Without the Veteran's authorization, VA could not obtain the private treatment records that were generated for the claimed left hand disability. In November 2020, the Veteran underwent a VA examination that addressed the nature and etiology of hand and finger conditions. The VA examiner reported that the Veteran did not have a current diagnosis for a left hand disability. The examiner opined that, "(t)here are no left hand conditions diagnosed. Veteran has decreased sensation in his fingers which is likely secondary to carpal tunnel syndrome. This condition is outside the scope of this exam. C-file notes veteran was diagnosed with bilateral carpal tunnel syndrome status-post left carpal tunnel release. As there are no left hand conditions diagnosed, no medical opinion is rendered." The Board notes that the September 2013 and November 2020 VA examiners did not consider or address the etiology of the Veteran's competently reported left hand pain and lack of sensation. Consequently, the Board finds the VA examination reports and opinions are not adequate for this service-connection analysis. See e.g., Dalton v. Nicholson, 21 Vet. App. 23 (2007) (finding that an examination was inadequate where the examiner did not comment on the veteran's report of an in-service injury and instead relied on the absence of evidence in the service treatment records to provide a negative opinion). The Board finds that a remand is warranted to obtain a VA examination report that considers the competent and credible lay statements from the Veteran regarding the current left hand pain and lack of sensation. Consequently, the matters are REMANDED to the AOJ for the following action: 1. Readjudicate the Veteran's claim for service connection for a cervical spine disability in light of all the additional evidence added to the record since the October 2019 SOC. 2. Secure a VA examination report that addresses the nature and etiology of any currently endured left hand disability. If the VA examiner determines that an in-person examination of the Veteran is necessary, the AOJ should schedule accordingly. The claims file should be made available to, and be reviewed by, the examiner, and it should be confirmed that such records were reviewed. The examiner must opine on whether the Veteran's current left hand pain and lack of sensation is at least as likely as not (50 percent probability or greater) related to the Veteran's June 1986 line of duty for a smashed left hand. 3. If the benefits sought on appeal are denied, the Veteran and his counsel should be provided a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board RLBJ, 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.