Citation Nr: 21039978 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-21 672 DATE: July 2, 2021 ISSUES Whether new and material evidence sufficient to reopen the claim of service connection for a lumbar back disability has been received. Entitlement to service connection for a lumbar back disability, to include as secondary to service-connected disability. Entitlement to a compensable rating prior to January 21, 2020 for residuals of a right great toe fracture. Entitlement to an increased rating in excess of 10 percent from January 21, 2020 for residuals of a right great toe fracture. Entitlement to compensation benefits pursuant to 38 U.S.C. § 1151 for left leg nerve damage. ORDER New and material evidence sufficient to reopen the claim of service connection for a lumbar back disability has been received, and to that extent only, the claim is granted. Entitlement to service connection for a lumbar back disability, to include as secondary to service-connected disability, is denied. Entitlement to a compensable rating prior to July 17, 2013, (formerly January 21, 2020), for residuals of a right great toe fracture is denied. Entitlement to an increased rating of 10 percent, but no higher, from July 17, 2013 to February 11, 2016 for residuals of a right great toe fracture is granted. Entitlement to an increased rating of 20 percent, but no higher, from February 11, 2016 forward for residuals of a right great toe fracture is granted. Entitlement to compensation benefits pursuant to 38 U.S.C. § 1151 for left leg nerve damage is denied. FINDINGS OF FACT 1. In September 2010, the RO issued a rating decision denying entitlement to service connection for a lumbar back disability. The rating decision was not appealed and new and material evidence was not received during the one-year appeal period following that decision, and thus, that decision is final. 2. Evidence received since the September 2010 rating decision regarding the Veteran's claim for service connection for the lumbar back disability is not cumulative or redundant of the evidence previously of record, and raises a reasonable possibility of substantiating the Veteran's claim of service connection for a lumbar back disability. 3. A lumbar spine disability was not manifest during active service, or until many years after service, and is not shown to be causally or etiologically related to an in-service event, injury, or disease. 4. A lumbar spine disability was not caused or aggravated by other service-connected disability. 5. Prior to July 17, 2013, (formerly January 21, 2020), the Veteran's right great toe disability residuals were generally asymptomatic. 6. For the Veteran's right great toe disability from July 17, 2013 to February 11, 2016, the symptoms included pain, pain on motion, and difficulty standing for long periods, and are characterized as moderate. 7. For the Veteran's right great toe disability from February 11, 2016 forward, the symptoms included sharp shooting pain, pain on motion, and difficulty walking for any distance and standing for long periods, and are characterized as moderately severe. 8. The Veteran does not have a left leg disability or any other additional disability resulting from VA's medical treatment in February 2010, to include spine surgery. 9. The Veteran's claimed additional disability was neither a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA health care providers who provided treatment; nor was any claimed additional disability due to an event that was not reasonably foreseeable. CONCLUSIONS OF LAW 1. The September 2010 rating decision is final. 38 U.S.C. §§ 7104, 7105 (2007); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2009). 2. New and material evidence sufficient to reopen the claim of service connection for a left ankle disability has been received since September 2010 and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2020). 3. The criteria for service connection for a lumbar back disability has not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2020). 4. For the period prior to July 17, 2013, (formerly January 21, 2020), the criteria for the assignment of a compensable rating for the Veteran's right great toe disability have not been met or approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.3, 4.6, 4.7, 4.71a, Diagnostic Code 5284 (2020). 5. For the period from July 17, 2013 to February 11, 2016, the criteria for the assignment of a disability rating of 10 percent, but no higher, for the Veteran's right great toe disability have been met or approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.3, 4.6, 4.7, 4.71a, Diagnostic Code 5284 (2020). 6. For the period from February 11, 2016, the criteria for the assignment of a disability rating of 20 percent, but no higher, for the Veteran's right great toe disability have been met or approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.3, 4.6, 4.7, 4.71a, Diagnostic Code 5284 (2020). 7. The criteria for compensation under 38 U.S.C. § 1151 for additional disability as a result of medical treatment in 2010, to include spine surgery, have not been met. 38 U.S.C. § 1151 (2012); 38 C.F.R. §§ 3.361, 17.32 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran served on active duty from March to July 1980, October 1981 to October 1984, and November 1985 to May 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board remanded the issues on appeal for additional development in October 2019. The directives having been substantially complied with, the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). By way of background, in a July 2020 rating decision, the evaluation for the residuals of a right great toe fracture was increased to 10 percent disabling, effective January 21, 2020. The grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. As to the issue of service connection for a lumbar back disability, in any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 23940 (1995). As indicated by the Board in our October 2019 remand, the AOJ originally denied the reopening of claim of service connection for a lumbar spine disability in its August 2013 rating decision, but later essentially reopened the previously denied claim and fully addressed the service connection issue on the merits in their March 2016 statement of the case. As noted above, regardless of the AOJ having heretofore reopened the claim, the Board must still address the threshold issue on a de novo basis. When a Veteran files a claim for an increased rating, he or she is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). Here, both VA and private medical records indicate the Veteran has been employed full time, and he has not asserted that his service-connected disabilities keep him from gaining and maintaining suitable employment. There is no further lay or medical evidence the Veteran is housebound in fact, requires aid and attendance, or that his disabilities result in loss of use of a limb or blindness. 38 U.S.C. §§ 1114(s), (l), (k); 38 C.F.R. § 3.350(a), (b), (i). The Board finds that consideration of TDIU and SMC are not inferred by the record, and as such will not be discussed. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2020). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Petition to Reopen In February 2010, VA received the Veteran's original claim for entitlement to service connection for, in pertinent part, a lumbar back disability. The claim was originally denied in September 2010 and the Veteran was notified on September 20, 2010 because the evidence did not show a nexus to service. The RO reviewed the Veteran's available service treatment records (STRs), a VA examination provided in August 2010, and his statements regarding the disorders. The Veteran did not file a notice of disagreement (NOD) or submit new and material evidence within the one-year appeal period following that decision. He also did not assert there was clear and unmistakable error in the rating decision. Therefore, the decision became final. 38 U.S.C. § 7105(c) (2007); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2009). The Veteran sought to reopen this claim in January 2013. The RO reviewed the Veteran's available service treatment records (STRs), VA treatment records, private treatment records, and his statements regarding his lumbar back during and after service. The RO denied reopening of the claim in an August 2013 rating decision, saying that no new and material evidence had been submitted. The Veteran filed a notice of disagreement (NOD) in March 2014. VA issued a Statement of the Case (SOC) in March 2016 that essentially reopened the previously denied claim and fully addressed the service connection issue on the merits in their March 2016 statement of the case. The Veteran perfected an appeal to the Board in May 2016. As noted above, regardless of the AOJ having heretofore reopened the claim, the Board is required to address new and material claims in the first instance. The Board has the jurisdiction to address a new and material issue and to reach the underlying de novo claims. If the Board determines that new and material evidence has not been received, the adjudication of the particular claim ends, and further analysis is neither required nor permitted. Any decision that the AOJ may have made with regard to a new and material claim is irrelevant. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Thus, the Board will adjudicate this new and material issue in the first instance. New evidence is defined as existing evidence not previously submitted to VA since the last final denial, and material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2020). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Only evidence presented since the last, final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 284 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). 1. New and material evidence sufficient to reopen the claim of service connection for a lumbar back disability has been received, and to that extent only, the claim is granted The evidence of record in September 2010 consisted of service records, including personnel records and separation examination reports, and lay statements from the Veteran. The Veteran was also provided a VA examination in August 2010. The evidence of record at that time did establish a current diagnosis of a lumbar back disability, but without a nexus to military service. Since the September 2010 rating decision, the Veteran's file has additional VA medical records and private medical treatment records through 2020, to include VA examinations provided in February 2016 and January 2020 that have been attached to the claims file. Furthermore, the Veteran's lay statements in the claims file have provided additional insight and facts into the Veteran's claims. This evidence is not cumulative or redundant of the evidence previously of record, and assuming its credibility for the purpose of the threshold question of whether the claim can be reopened raises a reasonable possibility of substantiating the Veteran's claim of service connection for a lumbar back disability. As new and material evidence has been received, reopening of the previously denied claims of entitlement to service connection for a lumbar back disability is warranted. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). To that extent only, the claim is granted. Service Connection for Lumbar Spine Disability Legal Criteria for Service Connection - General Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for 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). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or aggravated by a service-connected disability. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include arthritis, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For arthritis, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). Service connection can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been "shown in service," there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Proof of a current disability is a threshold to establishing service-connection for any claimed disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). To be a present as a current disability, there must be evidence of the condition at some time during the appeals period. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence'' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Evidence and Analysis Lumbar Back The Veteran filed a claim for entitlement to service connection for a lumbar back disability in February 2010. The Veteran asserted that he had back pain and related nerve damage that had originated in service. The Veteran's service medical records show a March 1982 complaint of low back pain that resolved with rest. There were two more complaints of a back strain, in October 1982 and again May 1983; each were treated with rest and analgesics, and the Veteran's physical profile was temporarily limited to allow his strain to heal. The Veteran's two service separation examinations, the last in May 1988, are silent for any lumbar back complaints or issues. In February 2010, the Veteran underwent surgery for a L5-S1 lumbar diskectomy for a herniated disc suffered in the course of his employment with the U.S. Postal Service as a mail carrier. The Veteran filed a worker's compensation claim for that injury but also filed with VA for service connection of his lumbar back, asserting that his lumbar back problems were related to his fracture of his right great toe in service. VA provided a VA examination in July 2010 to assess the Veteran's lumbar back claim. The examiner noted the Veteran had since returned to work full time after the February 2010 surgery but has some persistent numbness in the left foot. The examiner found normal posture and gait along with a five-centimeter well-healed scar for the diskectomy. There was no deformity, spasms, or tenderness. Straight leg raise test was negative on both sies. There was no motor weakness and no foot drop. There was some sensory deficit in the posterior left calf and the lateral side of the left foot. Reduced range of motion was noted, and there was no pain, weakness, fatiguability, or loss of coordination. The examiner did not provide an explicit opinion for direct service connection but noted that the Veteran's lumbar back disability was more likely due to his recent work injury and February 2010 lumbar diskectomy, because the Veteran's original back complaints in service pre-date his original right great toe fracture. The Veteran received another VA examination for his lumbar back claim in February 2016. The Veteran reported daily back pain, with occasional "twinges" of increased pain after physically stressful activity. Range of motion testing was normal in all axes and muscle strength was five on a scale of five. The left ankle had slightly hypoactive reflex, but the remainder of the reflex testing was normal. The left leg and left foot indicated decreased sense to light touch, but the right leg and foot were normal. This examiner found no radiculopathy. The straight leg raising test was negative for each side. X-rays taken as part of the examination indicated mild degenerative arthritis and disk disease at L5-S1. This VA examiner provided a negative opinion for secondary service connection, saying it was less likely than not, less than 50 percent probability, that the Veteran's lumbar back disability was proximately caused or aggravated by his service connected right great toe disability, or any other service connected disability. The examiner's rationale was that the two disabilities, the lumbar back and the right great toe were completely unrelated, as a toe fracture would not create or worsen a lumbar spine disc herniation disability. A formal opinion for direct service connection was not provided. The Veteran received another VA examination for his lumbar back in January 2020, with an addendum opinion by the same examiner in August 2020. This VA examiner, a neurosurgeon, diagnosed degenerative arthritis of the spine with a hemilaminectomy and diskectomy. This examiner also noted lower extremity radiculopathy based on the L5-S1 lumbar disc issue, with mild numbness in the left lower extremity. He found the Veteran's gait and posture to be normal and noted the differences between the Veteran's musculoskeletal strains from service, which healed without sequelae, and the lumbar condition that led to the February 2010 surgery, noting that injury or other trauma to the lower spine had damaged a disc in the area of L5-S1 and required surgical intervention. Range of motion measurements were all normal, and no pain was noted on motion. There was no evidence of pain on weight bearing, and no flareups were reported. There was no guarding and no muscle spasm. Muscle strength, reflexes, and sensory examination were all normal. There was no intervertebral disc syndrome noted. This VA examiner provided a negative opinion for direct service connection, saying it was less likely than not, less than 50 percent probability, that the Veteran's lumbar back disability was due to or etiologically related to active service. The examiner's rationale was that there were no injuries or incidents in service that would lead to a herniated disk issue over 20 years later. The examiner noted the three low back muscular strains in service but pointed out that they would not lead to herniated disk issues over two decades later. The examiner also provided a negative secondary service connection opinion, saying it was less likely than not, less than 50 percent probability, that the Veteran's lumbar back herniated disk was due to or aggravated by any service connected disability, including the Veteran's right great toe fracture residuals. The examiner's rationale is that there has never been any documentation of an altered gait of the Veteran by any reason, including his right great toe residuals. The examiner pointed out there has been no documentation of symptomatic residuals of the right great toe until after the Veteran's lumbar diskectomy of February 2010, and there is no reliable medical literature or other evidence that alterations of gait result in lumbar disk herniation. 2. Entitlement to service connection for a lumbar back disability, to include as secondary to service-connected disability The Board finds the July 2010, February 2016, and January 2020 VA examination reports and opinions to be of great probative value, to include the August 2020 VA addendum opinion, along with both the VA treatment notes and private treatment regarding the Veteran's claimed spine disabilities. Indeed, the VA examiners considered the Veteran's contention, the claims file, and clinical medical evidence before providing a negative opinion for direct service connection and secondary service connection. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The examiners' negative opinions were supported by a sufficiently clear and well-reasoned medical rationale and was consistent with the verifiable facts regarding the Veteran's contentions. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005). The Board acknowledges that the Veteran is competent to testify as to his beliefs that his disabilities are related to service. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). In order for lay evidence to be competent, the individual must have personal knowledge, derived from his/her own senses, of what is being attested; "[c]ompetent testimony is thus limited to that which the witness has actually observed, and is within the realm of his personal knowledge." Layno v. Brown, 6 Vet. App. 465, 471 (1994). Here, the Veteran, via the supplied statements, is competent to testify about his symptoms relating to his claimed lumbar symptoms. However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding etiology of his lumbar back disability. See 38 C.F.R. § 3.159(a)(1) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the etiology of any current condition, as the causative factors for such are not readily subject to lay observation. See Layno v. Brown, 6 Vet. App. 465 (1994); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, his assertions to that effect are of no probative value. The Board acknowledges the Veteran's statements that his lumbar spine symptoms could be related to service. However, the Board notes that the Veteran's service treatment records, to include reports of medical history, are silent for any treatment or complaint of any lumbar condition during active service ending in May 1988 or until February 2010, the initial workplace accident, over 21 years after active service ended. The Board notes especially that even though the Veteran asserts a 1982 right great toe fracture was the cause of his lumbar condition, that the service treatment records were silent for any chronic effects of that right great toe fracture, to include any lumbar problems at the end of active service in May 1988. A negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board also notes with emphasis the 2010 intervening workplace accident of the Veteran that led to worker's compensation benefits, but is omitted from the Veteran's other lay statements. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); Pond v. West, 12 Vet. App. 341 (1999) (although the Board must take into consideration the Veteran's statements, it may consider whether self-interest may be a factor in making such statements); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam). The Board notes there are no other statements besides the previously mentioned chiropractor by any medical provider, VA or private, that are in favor of a possible nexus to service for the Veteran's claimed lumbar spine disability. Upon review of the record, the Board concludes that entitlement to service connection for a lumbar spine disability is not warranted. The Board notes a current diagnosis of a lumbar spine disability in July 2010 and again in February 2016 and January 2010, and thus the requirement for a current disability is shown for each the lumbar back claim. The Board acknowledges the Veteran's contentions, and the Veteran's post-service statements are noted. However, the Veteran's service medical records, to include all examinations, are silent for any existing lumbar spine condition at the time of separation, and there is no competent evidence to tie the current assertion to any in-service disease or injury. Three VA examiners have discussed all of the Veteran's lumbar spine disabilities and all possible risk factors raised by the record, and opined that the current lumbar spine is not related back to active service by either direct or secondary service connection. The Board thus finds the Veteran fails the third prong of the test for entitlement to direct or secondary service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. §§ 3.303, 3.310. With regard to possible presumptive service connection for degenerative arthritis, the weight of evidence shows no formal diagnosis of any lumbar spine arthritis on any examination, private or VA, until February 2010, 22 years after active service. As such, presumptive service connection is not warranted. 38 C.F.R. §§ 3.303, 3.309. Based on the above, the Board finds that the weight of the competent and credible evidence demonstrates that the Veteran's claimed lumbar spine disability was not incurred in service. For these reasons, the Board finds that a preponderance of the evidence is against the claim of service connection for a lumbar spine disability, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased Schedular Ratings - General Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. § Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § § 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § § 4.1 (2013); 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). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The determination of whether an increased disability rating is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). The final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). Additionally, the United States Court of Appeals for Veterans' Claims (Court) recently addressed what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. The Board also notes recent case law where the Court held that 38 C.F.R. § 4.59 does not solely condition the evaluation based on range of motion measurements for a particular diagnostic code, but rather "it conditions that award on evidence of an actually painful, unstable, or maligned joint or periarticular region and the presence of a compensable evaluation in the applicable diagnostic code." Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016). The Board considers not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his [or her] earning capacity." See 38 U.S.C. § 1155 (2012); Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When analyzing lay evidence, the Board should assess the evidence and determine whether the disability claimed is of the type for which lay evidence is competent. See Davidson, 581 F.3d at 1313; Kahana v. Shinseki, 24 Vet. App. 428 (2011). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § § 4.7. The Veteran's right foot great toe conditions are rated under Diagnostic Code 5284, governing other foot injuries. As the rating schedule does not provide specific criteria for a great toe injury, this disability has been evaluated by analogy to general foot injuries not under Diagnostic Code 5284. See 38 C.F.R. §§ 4.20, 4.71a; Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) (Diagnostic Code 5284 only applies to foot disabilities for which there is not already a specific Diagnostic Code). Diagnostic Code 5284 for "foot injuries, other" provides for a 10 percent rating for a moderate foot disability, a 20 percent rating for moderately severe foot disability, and the maximum 30 percent rating for severe foot disability. A 40 percent rating is assigned for actual loss of use of the foot. See 38 C.F.R. § 4.71a, Diagnostic Code 5284, Note. Descriptive words such as "moderate," "moderately severe," and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. Loss of use of a foot will be held to exist when no effective function remains other than that which would be equally welly served by an amputation stump at the site of election below knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function of the foot, whether balance and propulsion, etc., could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 4.63. When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. The Board is cognizant of the limit set forth by the amputation rule, which states that the combined rating for a disability shall not exceed the rating for amputation at the elective level, were amputation to be performed. 38 C.F.R. § 4.68. Nevertheless, the Board will address the appropriate rating under the relevant Diagnostic Code, understanding that application of the amputation rule will limit the total combined evaluation. Evidence and Analysis Right Great Toe The Veteran filed his claim for increased ratings in January 2013 for the right great toe. As such, the Board will focus on the disability level of his toe disability from one year immediately preceding the claim. See 38 U.S.C. § 5110 (b)(2) and 38 C.F.R. § 3.400 (o)(2) (stating that in assessing the present level of disability, the relevant temporal focus is from one year immediately preceding the filing of the increased-rating claim); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's right great toe disability originated in active service in August 1982, when a heavy metal bar fell on his right great toe, fracturing the distal phalanx of the right foot great toe. The initial treatment was conservative with bed rest and splinting and the Veteran noted in a July 1988 VA evaluation that he had no further complaints with that toe, and that there was no pain or stiffness. The examiner noted the toe to be non-tender with no swelling or scars. Service connection was established with a noncompensable rating under Diagnostic Code 5284 with an effective date of May 7, 1988, the first day after the release of the Veteran from active duty. After the Veteran filed a claim for an increased rating in January 2013, he received a VA foot examination in July 2013. The Veteran reported that his right great toe has become more painful over the years, with a shooting pain into the middle of the foot. Walking made the pain worse, with a throbbing sensation. Orthotics did not help. X-rays were taken as part of this examination and were considered normal with no abnormal pathology, to include no findings of arthritis. The examiner noted no signs of a Morton's neuroma, metatarsalgia, hammer toe, hallux valgus, hallux rigidus, pes cavus, or malunion/nonunion of the tarsal or metatarsal bones, but did note an overall "moderate" degree of disability for the right great toe on the examination form. The examiner concluded his report with the opinion that the Veteran's right great toe injury from 1982 had generally healed and the current right foot condition was due in part to a recent 2010 work-related injury while the Veteran was working for the U.S. Postal Service as a mail carrier. The Veteran received another VA examination for his feet in February 2016. The examiner noted the 1982 service origin of the right great toe fracture and the Veteran's statement that his pain in that toe has gradually worsened over a 20-year period, noting he has to be careful of the shoes he wears. The Veteran described his pain as "cramping," but did not report any episodes of flareups. The examiner noted pain on weight bearing and stated in her report that there was functional impact in that the Veteran was limited in walking or standing for extended periods, where bending that right great toe was required. This VA examiner characterized the Veteran's right great toe disability as "severe." No arthritis was present in x-rays taken as part of this examination. The Veteran received another VA foot examination in January 2020. The examiner noted the Veteran's statements that he has a lot of pain in the right great toe when standing or walking for a long time. No flareups were noted. The examiner noted no signs of a Morton's neuroma, metatarsalgia, hammer toe, hallux valgus, hallux rigidus, pes cavus, or malunion/nonunion of the tarsal or metatarsal bones. The examiner noted the residuals of the right great toe continue with symptoms of sharp pain with prolonged standing and walking, and requiring non-prescription analgesics on a regular basis to continue with the activities of daily living, equating to a moderate level of overall severity. This examiner characterized the Veteran's overall disability as "moderate" but also noted symptomatology as "moderately severe" in another section of the examination form. Functional loss for the residuals of the right great toe were described as limitations on prolonged standing and walking. No assistance to ambulation was noted, to include wheelchair, braces, crutches, a cane, or a walker. No arthritis was noted on x-rays taken for this examination, and no other pathology was observed via imaging. 3. Entitlement to a compensable rating prior to July 17, 2013, (formerly January 21, 2020) for residuals of a right great toe fracture is denied. Based on the medical evidence, the Board finds that for the period on appeal for the right great toe, prior to July 17, 2013, that a compensable evaluation is not warranted, under Diagnostic Code 5284. The Board notes the Veteran's residuals of his right great toe fracture, which occurred in service in 1982, to be asymptomatic, prior to July 2013. There is no medical evidence in the otherwise ample VA claims file regarding any complaints related specifically to the right great toe. The examiner noted the Veteran's periodic statements during general physical examinations that his right great toe itself was largely asymptomatic and the Veteran was able to work in occupations that required mobility without any functional loss. The examiner noted the Veteran's February 2010 surgery for a lumbar spine disc herniation issue, but also noted that the Veteran's right great toe exhibited normal during examination and that x-rays revealed no pathology of the right foot. As noted above, the minimum rating for DC 5284 provides a 10 percent rating for moderate disability, but the examiners in this period declined to make such a finding of moderate disability or greater at any time prior to July 17, 2013. As such, then, the Board finds that a compensable evaluation of 10 percent or higher for the Veteran's right foot great toe is not warranted from the effective date of service connection through July 17, 2013 under Diagnostic Code 5284. 4. Entitlement to an increased rating in excess of 10 percent from July 17, 2013 to February 11, 2016 for residuals of a right great toe fracture. As noted in the introduction, the RO increased the rating of the Veteran's right great toe from noncompensable to 10 percent in a July 2020 rating decision, effective from January 21, 2020, the date of a VA examination that found for a higher rating. Here, the Board finds that the effective date of the increased rating should date from earlier based on the medical evidence, now from July 17, 2013, with a 10 percent rating under Diagnostic Code 5284. The Veteran received a VA examination on July 17, 2013 that noted a greater degree of severity of symptoms when compared to the earlier July 2013 VA examination. The Veteran has consistently reported painful, aching, and tingling in the great toe area on his right foot, along with difficulty walking, difficulty bearing weight on standing, and limitation of motion. The Board finds that there is sufficient competent and credible evidence of pain. The Veteran is competent to report symptoms of pain as they are subject to his observation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The regulations do not limit pain to objective or subjective pain. That July 2013 VA examiner noted overall symptomatology had worsened since the previous 2010 VA examination and characterized the Veteran's overall disability as "moderate," which results in a 10 percent disability for this period under Diagnostic Code 5284. 5. Entitlement to an increased rating of 20 percent from February 11, 2016 for residuals of a right great toe fracture. The Veteran's February 2016 examination indicated a worsening of symptoms of the Veteran's right great toe disability. The Veteran had reported sharp, shooting pains from his right great toe area and that he had difficulty walking for anything beyond a short distance, and that he couldn't stand in one place for long before his right toe became painful. This time the VA examiner had characterized the symptoms with a mix of descriptive language, and the Board finds that a "moderately severe" level of disability exists based on the Veteran's worsening symptoms as he reported and the February 2016 examiner's findings. The Board notes that examiner's comments that some of the symptoms of the Veteran's right great toe could also be due to radiculopathy related to a non-service-connected lumbar back disk herniation issue, but the examiner also stated he could not distinguish the symptoms between the two. If the conditions cannot be sufficiently distinguished, entitlement to the benefit sought is determined based on the overlapping symptoms, which are attributed in whole to the service-connected disability. 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181 (1998). The Board notes that the January 2020 examiner's findings were characterized as overall "moderate," but also notes the description of the symptomatology was very similar to the February 2016's examiner's findings, and that the Diagnostic Code 5284 criteria are described in subjective degrees of level of disability in terms of "moderate" and "moderately severe." The Board will therefore provide the Veteran with the greater benefit of the doubt and award the 20 percent rating effective from February 11, 2016 forward. The Board further finds that the Veteran is not entitled to a higher rating under DC 5284 because the degree of disability does not reach a severe level where greater pain or other symptoms might otherwise limit the Veteran to a greater degree or cause greater functional loss. The Veteran is capable of wearing shoes, albeit only those that can be comfortably put on and off his right foot, and the Veteran is capable of holding a full-time position, though with accomodation for periodic bouts of pain in his right foot due to his great toe injury residuals. At no time since the effective date of service connection has a VA or private medical treatment provider ever found objective evidence of arthritis, and as such, ratings due to arthritis are therefore not warranted for this disability. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. The Board selected the dates of increase of July 17, 2013 and February 11, 2016, the date his increased disability was "factually ascertainable" within the meaning of Harper, 10 Vet. App. at 126-127, and 38 C.F.R. § 3.400(o)(2). As such, the Board therefore finds that the Veteran's 10 percent evaluation of his right great toe is effective July 17, 2013 based on the VA medical examination provided that date where the increased level of disability became factually ascertainable. Similarly, the Board finds that the 20 percent evaluation is effective from February 11, 2016, which was the examination date where an increased level of disability became factually ascertainable at the higher 20 percent evaluation level, all under Diagnostic Code 5284. The Board has also considered the effective date of increase in light of Swain v. McDonald, 27 Vet. App. 219 (2015). Under 38 C.F.R. § 3.400(o)(2), an increase in disability compensation is assigned from the "[e]arliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within 1 year from such date, otherwise, date of receipt of claim." In Swain, the CAVC held assigning the effective date of an increased rating is not a mechanical exercise of applying the date of the VA examination that warranted the increase. Id. at 223-24. Rather, the Board must review all relevant evidence of record to determine when the increase in the disability can be ascertained. Id. The Board finds the assignment of July 17, 2013 and February 11, 2016 as the effective dates of the increased evaluations, based on the date the increases became factually ascertainable, is consistent with the guidance of Swain. As such, then, the Board finds that a noncompensable evaluation for the Veteran's right foot great toe is warranted under Diagnostic Code 5284 prior to July 17, 2013. From July 17, 2013 to February 11, 2016, the Board finds a 10 percent evaluation, but no higher, is warranted. From February 11, 2016 forward, the Board finds a 20 percent evaluation, but no higher, is warranted. All potentially applicable diagnostic codes have been considered, and there is no basis to assign an alternative evaluation for the Veteran's right great toe disability other than that discussed above. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Staged ratings are not warranted beyond that already discussed. See Hart, 21 Vet. App. 505. 38 U.S.C. § 1151 Claim Legal Standards - Compensation Pursuant to 38 U.S.C. § 1151 When a veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, compensated work therapy, or an examination furnished by the VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service-connected if the additional disability was not the result of willful misconduct and was proximately caused by "carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of [VA] in furnishing" that treatment or "an event not reasonably foreseeable." 38 U.S.C. § 1151(a)(1)(A), (B); 38 C.F.R. § 3.361; Viegas v. Shinseki, 705 F.3d 1374, 137778 (Fed. Cir. 2013). In essence, there are three elements required to establish benefits under 38 U.S.C. § 1151. Specifically, the Veteran must show: (1) additional disability which was caused by VA hospital care, medical or surgical treatment or examination; (2) a causal nexus between the VA treatment (medical, surgical or hospitalization), an examination, or vocational rehabilitation under chapter 31 and the additional disability; and (3) a finding of fault or a finding of an unforeseen circumstance. Each element is a prerequisite for the subsequent element. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. To determine whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based to the veteran's condition after such care, treatment, examination, services, or program has stopped. See 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that VA's hospital care, medical or surgical treatment, or examination resulted in additional disability or death. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability or died does not establish cause. 38 C.F.R. § 3.361(c)(1). Such VA treatment cannot cause the continuance or natural progress of a disease or injury for which such care was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). Additional disability or death caused by a veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(3). The proximate cause of disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability, it must be shown that the hospital care, medical or surgical treatment, or examination actually caused the veteran's additional disability; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's informed consent. 38 C.F.R. § 3.361(d)(1)(i-ii). Whether the proximate cause of a veteran's additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). In addition to a showing of additional disability or death, there must be evidence showing either that VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or that VA furnished treatment without the informed consent of the veteran and his representative in compliance with 38 C.F.R. § 17.32. Minor deviations from the 38 C.F.R. § 17.32 requirements that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express or implied as specified under 38 C.F.R. § 17.32(b), as in emergency situations. 38 C.F.R. § 3.361(d)(1). Along these lines, the Court has held that it cannot be presumed that a complication was not discussed because it was not recorded. See Halcomb v. Shinseki, 23 Vet. App. 234, 241 (2009). That is, a VA consent form without listing a possible complication is not negligence per se. Id. at 239-41. Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Evidence and Analysis The Veteran originally filed a claim on August 1, 2011, claiming the disability of left leg nerve damage. After a clarifying exchange with the RO, it was determined the Veteran seeks entitlement to compensation under 38 U.S.C. § 1151 for left leg nerve damage. Specifically, he claims that he underwent lower back surgery in February 2010 at the Little Rock (Arkansas) VA Medical Center, and that as a result of that surgery, he experienced complications resulting in nerve damage to his left leg. He also contends that VA did not obtain his informed consent prior to this procedure. The records in the claims file indicate the Veteran had sustained an injury to his lower back in 2004 while working for the U.S. Postal Service, as shown by Worker's Compensation records. The Veteran had been obtaining medical care from VA by 2009 and reported to periodic examiners that he had bilateral pain from the waist down and also problems with his right foot. The Veteran has regularly noted that he had a sharp pain radiating down his left leg, with a tingling sensation in the bottom of his feet. The Veteran received an MRI for his lower back which showed a disc protrusion displacing the left S1 nerve within the lateral recess. The image also revealed a large free disc fragment, which had migrated inferiorly and was causing pressure on the left S1 nerve root. The formal diagnosis was a left L5-S1 herniated nucleus pulposus with an inferiorly-migrated free fragment and low back pain. Based on the Veteran's reported symptoms and the MRI of his lower back area, the Veteran was offered surgery on his lower back to address the disc herniation, and to remove the fragment seen on the image. The examiner's rationale was that the Veteran's symptoms of left leg nerve damage existed prior to the February 2010 surgery, noting that the surgery was an attempt to improve the Veteran's condition. Because the left leg condition that the Veteran complained of existed prior to the February 2010 VA spine surgery, the VA examiner noted that the spine surgery could not have been the cause of the left leg complaint. The examiner also noted that the Veteran's initial response to the February 2010 spine surgery was a large reduction in pain. A May 2010 electromyogram (EMG) study showed results consistent with damage to the S1 nerve root, a condition already diagnosed prior to the February 2010 surgery. The examiner concluded by noting that while the surgery had resulted in temporary relief of the Veteran's preexisting lumbar disc herniation problem, that the condition was not resolved, and that a less-than-ideal postoperative outcome did not constitute negligence, carelessness, lack of proper skill, or error in judgment or similar fault. After an October 2019 Board remand, the Veteran received another VA addendum opinion in November 2020 from a VA neurosurgeon regarding the Section 1151 claim regarding left leg nerve damage following a February 2010 VA spine surgery. This examiner began his opinion with a comprehensive discussion of the history of the Veteran's lumbar back issues. The earliest mention in the Veteran's post-service record of any back problem is a May 2000 MRI accomplished based on the Veteran's complaints of low back pain. That MRI indicated L5-S1 disk degeneration with mild bulging. There was no evidence of posterior focal disk protrusion or herniation. Mild degenerative disk disease was noted as well. A follow-on November 2004 EMG indicated right lumbar radiculopathy originating from approximately L4-L5, and a comment from that report saying that the examiner considered the Veteran's left foot pain was likely originating in his lower back. A May 2009 VA MRI of the lumbar spine showed lumbar spondylosis at L5-S1 with a left paracentral inferiorly migrating disc extrusion which creates lateral displacement of the left L5-S1 nerve. A VA neurosurgeon noted the Veteran's complaints that his lower back pain has been progressing and goes to the left foot. The Veteran had a consultation with his VA medical providers regarding the possibility of a spinal surgery to remove the disk fragment previously noted. The Veteran agreed to this surgery in January 2010, and VA obtained explicit informed consent from the Veteran on January 25, 2010 regarding the proposed spinal surgery, to include the specific procedure that would be performed, a posterior hemilaminectomy and discectomy, with a discussion of the anesthesia and other issues involved in the surgery. The Veteran's explicit agreement and consent to the procedure is noted in the medical record on January 25, 2010. The Veteran's surgery occurred on February 2, 2010, and a VA surgical team performed a left L5-S1 discectomy based on a herniated nucleus pulposus and removed disc fragments from that area of the spine, on the inferior side. A postoperative note from the day after indicated the Veteran complained of some numbness down the left leg, but was otherwise doing well. Approximately two weeks later, the Veteran has a postoperative appointment where he noted his left leg/foot symptoms were approximately the same in that there was still some numbness on the left lower leg. Two months after the operation, in April 2010, the Veteran had another post-operative examination where the VA physician examiner noted the Veteran's pain level was significantly reduced, though he still experienced some numbness in the left foot. This examiner also noted the sources of pain and discomfort related to the L5-S1 area where the nerve root was involved, but also that the Veteran has a mild peroneal nerve palsy of the left leg as well, not related to the L5-S1 herniated nuclear pulposus. This November 2020 examiner then provided his negative opinion regarding the Veteran's Section 1151 claim. The examiner stated that the Veteran's claimed leg damage is not the proximate cause of the VA lumbar back discectomy performed in February 2010 at a VA medical center. The examiner noted the Veteran had not reported numbness prior to the February 2010 surgery and those symptoms were attributable to another cause, most likely the peroneal palsy which is not related to the L5-S1 herniated nuclear pulposus. The examiner noted the surgery was accomplished to address the disk herniation and accomplished that goal, as noted by the Veteran's statements that his pain had dramatically reduced and that he was going to return to work for his employer, albeit in a capacity where he was not on his feet so much. It was also noted that the informed consent, explicitly provided by the Veteran on January 25, 2010 approximately a week before his spinal surgery, had noted that nerve damage was a possible complication, but also that there is no medical evidence confirming any nerve damage from the February 2010 surgery. This examiner also noted that there is no evidence that that VA failed to exercise the degree of care that would be expected of a reasonable health care provider or that the surgery was performed without the Veteran's informed consent. 6. Entitlement to compensation benefits pursuant to 38 U.S.C. § 1151 for left leg nerve damage. The Board finds that the Veteran's claim under Section 1151 must be denied because the Veteran has failed to show any additional disability which was caused by VA medical care, specifically the February 2010 spine surgery at a VA medical center. Here, multiple medical examiners have opined that no additional disability resulted from that February 2010 spine surgery. Both examiners, the August 2013 and the November 2020 VA examiners, noted that the Veteran's symptoms of his left leg nerve damage existed prior to the surgery in question, and while the surgery repaired some of the causes of the Veteran's symptomatology, the Veteran's surgery achieved the aims discussed with the Veteran on January 25, 2010, where the Veteran gave his informed consent to the surgery at issue. Both VA examiners, who each provided a negative opinion, noted that the Veteran's symptoms of his left leg existed prior to the February 2010 surgery. Each of these examiners also noted that the Veteran has other lower extremity symptoms with different etiologies other than the L5-S1 herniated nuclear pulposus that led to the February 2010 lumbar spine discectomy in question. The November 2020 VA examiner also noted that the Veteran had provided explicit informed consent for the February 2010 VA spine surgery in a record dated January 25, 2010. In essence, there are three elements required to establish benefits under 38 U.S.C. § 1151. Specifically, the Veteran must show: (1) additional disability which was caused by VA hospital care, medical or surgical treatment or examination; (2) a causal nexus between the VA treatment (medical, surgical or hospitalization), an examination, or vocational rehabilitation under chapter 31 and the additional disability; and (3) a finding of fault or a finding of an unforeseen circumstance. Each element is a prerequisite for the subsequent element. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. To determine whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based to the veteran's condition after such care, treatment, examination, services, or program has stopped. See 38 C.F.R. § 3.361(b). Here, as noted above, the VA examiners have opined that there is no additional disability resulting from the Veteran's February 2010 surgery, because the symptomatology complained of by the Veteran existed prior to the February 2010 surgery, and the observed symptomatology after that surgery related back to the same causes, the lumbar spine herniated nuclear pulposus. Because there is no additional disability from the February 2010 surgery, the analysis need not proceed further as to the question of a causal nexus, and/or a finding of fault or a finding of unforeseen circumstance. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. In addition, the Veteran provided his explicit informed consent in a record dated January 25, 2010. Although the Veteran asserts that his left leg nerve pain is the fault of VA, the competent evidence of record does not support that assertion, and the Veteran does not possess the requisite medical training necessary to provide a competent opinion on this issue. The Veteran is competent to report symptoms that began in response to lumbar back and lower extremity complaints, but the record reflects that the Veteran's complaints and subsequent treatment with no adverse follow-on complaints or reactions were reasonably foreseeable in light of his description of symptoms. In some instances, laypersons are competent to provide an opinion of a medical nature. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (providing an example at footnote 4 that a layperson would be competent to diagnose a simple condition such as a broken leg but not to diagnose a form of cancer); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002). However, since the opinion in this case involves a medical and technical conclusion regarding the ordinary standard of care and whether it was exercised in the finding of any additional disability, the August 2013 and November 2020 VA examiners' opinions are more probative than the Veteran's lay assertions. The examiners have expertise, experience, education, and training that the Veteran is not shown to have. As such, the Veteran's assertions are outweighed by the other evidence of record. As such, entitlement to VA compensation under 38 U.S.C. § 1151 for left leg residuals of lumbar spine surgery is denied. In the analysis required in 38 U.S.C. § 1151 and 38 C.F.R. § 3.361, the finding of no additional disability means that further analysis of a possible nexus and a finding of fault or unforeseen circumstance is not required. 38 C.F.R. § 3.361(b). Because no additional disability has been shown, the claim must be denied. The medical evidence further demonstrates that the Veteran has not suffered from additional left leg nerve conditions as the result of negligence on the part of VA or an event not reasonably foreseeable. The Board therefore finds that the preponderance of the evidence is against his claim for benefits under 38 U.S.C. § 1151. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (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). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Setter, 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.