judge_norm: J W ZISSIMOS

condition: knee

condition: back

text:
Citation Nr: 1531000
Decision Date: 07/21/15    Archive Date: 08/05/15

DOCKET NO.  10-40 307	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado

THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim for service connection for a right knee disorder, to include as secondary to service-connected bilateral pes planus and left knee chondromalacia.

2.  Whether new and material evidence has been received to reopen a claim for service connection for a right ankle disorder, to include as secondary to service-connected bilateral pes planus.

3.  Whether new and material evidence has been received to reopen a claim for service connection for a left ankle disorder, to include as secondary to service-connected bilateral pes planus.

4.  Whether new and material evidence has been received to reopen a claim for service connection for a low back disorder, to include as secondary to service-connected bilateral pes planus.

5.  Entitlement to service connection for a left shoulder disorder.
6.  Entitlement to an initial disability rating greater than 30 percent for bilateral pes planus with arthritis.

7.  Entitlement to an initial disability rating greater than 10 percent for left knee chondromalacia with arthritis.

REPRESENTATION

Appellant represented by:	Joseph A. Whitcomb, Attorney

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

Paul S. Rubin, Counsel

INTRODUCTION

The Veteran had active duty service from April 1973 to November 1973 in the United States Army.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from January 2010, April 2010, and September 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.

In September 2014, the Veteran presented testimony at a Board videoconference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the Virtual VA paperless claims processing system.
A review of the Virtual VA paperless claims processing system reveals VA treatment records and the hearing transcript.  The remainder of the documents in Virtual VA are either duplicative of the records in the paper claims file or irrelevant to the issues decided herein.  A review of the Veterans Benefits Management System (VBMS) does not reveal any additional documents pertinent to the present appeal.

In a September 2011 rating decision, the RO denied the Veteran entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities.  However, a review of the record shows that the Veteran did not submit a Notice of Disagreement (NOD) or substantive appeal (e.g., VA Form 9 or equivalent statement) for the TDIU issue.  See 38 U.S.C.A. � 7105(a) (West 2014); 38 C.F.R. �� 20.200, 20.201, 20.202, 20.300, 20.302 (2014).  In addition, the Veteran has not alleged or submitted any evidence of unemployability after the September 2011 rating decision.  See 38 C.F.R. �� 3.156(b).  Thus, the TDIU issue is not on appeal before the Board.

The Board is reopening all of the new and material evidence issues and adjudicating the increased rating issue for bilateral pes planus.  All of the service connection issues and the increased rating issue for left knee chondromalacia with arthritis are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1.  In September 1996 and December 2007 rating decisions, the RO denied service connection for a low back disorder.  The Veteran did not perfect an appeal of the latter December 2007 rating decision.

2.  In a December 2007 rating decision, the RO previously considered and denied service connection for right knee, right ankle, and left ankle disorders.  The Veteran was notified of the December 2007 rating decision and of his appellate rights, but he did not appeal.  There was also no evidence received within one year of the issuance of that decision.

3.  The evidence received since the December 2007 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claims for service connection for low back, right knee, right ankle, and left ankle disorders and raises a reasonable possibility of substantiating them.

4.  The Veteran's bilateral pes planus with arthritis is productive of pronounced, marked pronation, not improved by orthopedic shoes or appliances, with pain, tenderness, weakness, and swelling in both feet.

CONCLUSIONS OF LAW

1.  The September 1996 and December 2007 rating decisions, which denied service connection for a low back disorder, are final.  38 U.S.C.A. � 7105 (West 2014); 38 C.F.R. �� 3.156(b), 3.160(d), 20.200, 20.201, 20.202, 20.302, 20.1103 (2014).

2.  The December 2007 rating decision, which denied service connection for right knee, right ankle, and left ankle disorders, is final.  38 U.S.C.A. � 7105 (West 2014); 38 C.F.R. �� 3.156, 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2014).

3.  The evidence received subsequent to the December 2007 rating decision is new and material, and the claims for service connection for low back, right knee, right ankle, and left ankle disorders are reopened.  38 U.S.C.A. � 5108 (West 2014); 38 C.F.R. � 3.156 (2014).

4.  The criteria have been met for an initial 50 percent rating, but no greater, for bilateral pes planus with arthritis.  38 U.S.C.A. �� 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. �� 3.159, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5276 (2014).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, �� 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. �� 3.102, 3.156(a), 3.159, 3.326(a) (2014).

At the outset, the Board notes that all of the new and material evidence claims are being reopened.  Thus, any lack of notice cannot be prejudicial for these particular claims.  Nevertheless, the Board will address the provisions of the VCAA, as it applies to the increased evaluation claim that is adjudicated herein.

VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. � 5103(a); 38 C.F.R. � 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  As part of this duty, the Veteran should be advised of the elements of a disability rating and an effective date.  Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  The duty to notify for the increased rating issue for pes planus in this case was satisfied by letters sent to the Veteran in May 2009 and June 2010.  Moreover, with regard to the timing of VCAA notice, the Court and Federal Circuit Court have held that VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (Mayfield II); Pelegrini II, 18 Vet. App. at 120.  In the present case, the RO issued all required VCAA notice for each issue prior to the rating decisions on appeal.  Thus, there is no timing error.

Accordingly, the Veteran has received all required notice in this case for the increased rating issue on appeal for bilateral pes planus, such that there is no prejudicial error in the content or timing of VCAA notice.  See also Shinseki v. Sanders, 556 U.S. 396 (2009) (an error in VCAA notice should not be presumed prejudicial and the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis).  In the present case, there has not been an allegation of any error in the VCAA notice provided to the Veteran.

With respect to the duty to assist, the RO has obtained the Veteran's service treatment records, VA treatment records, and VA examinations.  For his part, the Veteran has submitted personal statements and hearing testimony.  The Veteran has not identified any additional, outstanding evidence that is relevant to his increased rating claim for pes planus being decided herein.

The Board acknowledges that it is remanding the service connection issue for a low back disorder for relevant Social Security Administration (SSA) disability records.  See September 2014 hearing testimony at pages 47-48.  However, there is no allegation or evidence that those records are relevant to the increased rating issue for pes planus being denied.  Thus, it would serve no useful purpose to remand the pes planus claim to obtain the SSA records.  Although VA is required to make reasonable efforts to obtain private medical records, these SSA records must be "relevant" to the claims at issue.  38 U.S.C.A. � 5103A(c); 38 C.F.R. � 3.159(c)(2).  See also Golz v. Shinseki, 590 F.3d 1317, 1323 (2010) ("It is not the case that the government must obtain records in every case in order to rule out their relevance.  Such a decision would be akin to a determination that all medical records must be obtained.")  VA is not required to search for evidence which, even if obtained, would make no difference in the result.  Allday v. Brown, 7 Vet. App. 517, 526 (1995) (quoting Colvin v. Derwinski, 1 Vet. App. 171 (1991).

The Veteran was also afforded September 2009, July 2011, and April 2012 VA examinations to evaluate the severity of his bilateral pes planus disability.  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the VA examinations obtained in this case are adequate, as they are predicated on a review of the claims file and all pertinent evidence of record as well as on a physical examination.  The examination reports fully address the rating criteria that are relevant to rating the pes planus disability in this case.  The need for a more contemporaneous examination occurs only when the evidence indicates that the current rating may be incorrect or when the evidence indicates there has been a material change in the disability.  See 38 C.F.R. � 3.327(a); Palczewski v. Nicholson, 21 Vet. App. 174, 182-83; VAOPGCPREC 11-95 (1995) (a new examination is appropriate when there is an assertion of an increase in severity since the last examination).

The July 2012 VA examination is nearly three years old; however, there is no suggestion that the evidence is not sufficient to evaluate the appeal.  In this regard, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected bilateral pes planus since he was last examined, as VA treatment records dated from 2012 to 2014 do not demonstrate or suggest any worsening of the bilateral pes planus disability.  In addition, at the September 2014 hearing, the Veteran did not identify symptomatology indicative of a higher rating.  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95.  Therefore, a new VA examination to rate the severity of his bilateral pes planus disability is not warranted.

With regard to the September 2014 videoconference hearing, in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010), the Court held that the Veterans Law Judge who chairs a hearing fulfills two duties to comply with 38 C.F.R. � 3.103(c)(2).  These duties consist of (1) fully explaining the issues pertinent to the claim(s) on appeal; and (2) suggesting the submission of evidence that may have been overlooked.  See also 38 C.F.R. � 3.103(c)(2); Procopio v. Shinseki, 26 Vet. App. 76 (2012).  The September 2014 videoconference hearing, the Veterans Law Judge, the Veteran, and his attorney outlined the increased rating issue on appeal and engaged in a discussion as to substantiation of this claim.  The basic elements for an increased rating were also identified and discussed in detail.  See videoconference hearing at pages 51-73.  Potential favorable outstanding medical evidence was discussed, including the possibility of any outstanding private medical evidence.  The actions of the Veterans Law Judge supplement the VCAA and comply with any related duties owed during a hearing.  Overall, the hearing was legally sufficient, and there has been no allegation to the contrary.

The Board is therefore satisfied that VA has provided all assistance required by the VCAA.  38 U.S.C.A. � 5103A (West 2014).  Hence, there is no error or issue that precludes the Board from addressing the merits of this particular increased rating issue on appeal.

With regard to all the service connection claims and the claim for an increased rating for left knee chondromalacia, the Board finds that further evidentiary development is needed and will be discussed herein below.  Therefore, an analysis regarding compliance with the VCAA for these particular claims is not required at this time.

II.  New and Material Evidence for Low Back, Right Knee, Right Ankle, and Left Ankle Disorders

In September 1996 and December 2007 rating decisions, the RO denied service connection for a low back disorder because there was no evidence of a medical nexus between in-service low back symptoms and his current degenerative disc disease, and there was no evidence of continuity of symptomatology after discharge in November 1973.  Although the Veteran submitted a February 2008 notice of disagreement with the December 2007 rating decision, he did not perfect his appeal of that claim by filing a timely substantive appeal (e.g., VA Form 9 or equivalent statement) after the RO sent him a May 2009 statement of the case (SOC).  Therefore, the December 2007 RO rating decision is final for the low back disorder issue.  38 U.S.C.A. � 7105 (West 2014); 38 C.F.R. �� 3.156(b), 3.160(d), 20.200, 20.201, 20.202, 20.302, 20.1103 (2014).

In the May 2009 SOC, the RO determined that new and material evidence had not been submitted to reopen the low back disorder claim.  The Court has held that, in determining whether new and material evidence has been submitted to reopen a claim, it is necessary to consider all evidence added to the record since the last time the claim was denied on any basis, including on the absence of new and material evidence.  See Evans v. Brown, 9 Vet. App. 273, 283 (1996) (emphasis added).

In a December 2007 rating decision, the RO denied service connection for right ankle, left ankle, and right knee disorders because there was no evidence of a medical nexus between in-service symptoms and his current right ankle, left ankle, and right knee disorders, and there was no evidence of continuity of symptomatology after discharge in November 1973.  The Veteran was notified of this rating decision and of his appellate rights, but he did not submit a notice of disagreement.  He also did not submit any additional evidence relevant to these claims within one year of the December 2007 rating decision.  Therefore, the December 2007 rating decision became final for these particular issues.  38 U.S.C.A. � 7105 (West 2014); 38 C.F.R. �� 3.156(b), 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2014).

The Veteran filed his current petition to reopen his claims in March 2009 and May 2010.  During the present appeal, the RO did not reopen the new and material evidence issues and consider them on the merits.  Regardless of the RO's actions, the Board has jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened.  See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C.A. �� 5108, 7105(c)). See also Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92 (March 4, 1992).  Accordingly, the Board must initially determine whether there is new and material evidence to reopen the low back, right ankle, left ankle, and right knee disorders issues before proceeding to adjudicate the underlying merits of the claims.  If the Board finds that no new and material evidence has been provided, that is where the analysis must end.

A claimant may reopen a finally adjudicated claim by submitting new and material evidence.  New evidence means existing evidence not previously submitted to agency decision makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. � 3.156(a) (2014).

A finally decided claim must be reopened where the claimant submits new and material evidence relative to a fact that was unestablished at the time of the prior final decision on the claim.  Shade v. Shinseki, 24 Vet. App. 110, 119 (2010).  In Shade, the Court held that new evidence would raise a reasonable possibility of substantiating the claim if when considered with the old evidence it would at least trigger the Secretary's duty to assist by providing a medical opinion.  Id. at 118-19.  There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim, for purposes of reopening the claim.  Id. at 117.

Subsequent to the final December 2007 rating decision, the Veteran has also asserted a new theory of entitlement.  In this regard, he has provided lay testimony that his right knee, low back, right ankle, and left ankle disorders are secondary to his service-connected bilateral pes planus disability.  See September 2014 video hearing testimony at pages 43-46.  The Federal Circuit has held that a prior final denial on one theory of entitlement is considered a final denial on all theories of entitlement.  Bingham v. Nicholson, 421 F.3d 1346, 1349 (2005).  That is, while there may be multiple theories or means of establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit for the same disability, they constitute a single claim.  Roebuck v. Nicholson, 20 Vet. App. 307, 313 (2006).  As such, new and material evidence is still necessary to reopen a claim for the same benefit asserted under a different theory.  Id.  When determining whether new and material evidence has been submitted to reopen a claim, the Board must take into account more recent court decisions regarding the consideration of lay evidence.  Shade, 24 Vet. App. at 122.  For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992).

Assuming the credibility of the Veteran's lay testimony for purposes of reopening, the Board finds this evidence relates to at least one of the unestablished facts necessary to substantiate the claims and raises a reasonable possibility of substantiating the claims.  38 U.S.C.A. � 5108 (West 2014); 38 C.F.R. � 3.156 (2014).  The Board notes that the Veteran has provided additional details regarding his claims and explained why there was no documented continuity of treatment after service.  Therefore, the claims for service connection for low back, right ankle, left ankle, and right knee disorders are reopened based on a finding of new and material evidence.

III.  Increased Rating for Bilateral Pes Planus

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. � 1155; 38 C.F.R. � 4.1.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. � 4.7.

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 disability present.  38 C.F.R. � 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings.

When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. �� 4.40 and 4.45.  DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse.  Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant.  38 C.F.R. � 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997).

Although pain may cause a functional loss, pain itself does not constitute functional loss.  Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss.  Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. � 4.40).

With any form of arthritis, painful motion is an important factor of disability.  The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint.  Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint.  38 C.F.R. � 4.59.  Moreover, the Court has held that the application of 38 C.F.R. � 4.59 is not limited to disabilities involving arthritis.  When � 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, VA should address its applicability.  Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011).

Read together, Diagnostic Code 5003 and 38 C.F.R. � 4.59 indicate that painful motion of a major joint or groups caused by degenerative arthritis, where the arthritis is established by X-ray, is deemed to be limited motion and entitled to a minimum 10 percent rating, per joint, combined under Diagnostic Code 5003, even though there is no actual limitation of motion.  Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991).

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 duration of his service-connected pes planus disability.  See Falzone v. Brown, 8 Vet. App. 398 (1995); Heuer v. Brown, 7 Vet. App. 379 (1995).

In this case, the Veteran's bilateral pes planus with osteoarthritic changes is rated as 30 percent disabling under Diagnostic Codes 5010-5276, acquired flatfoot with traumatic arthritis.  38 C.F.R. � 4.71a (2014).  This 30 percent rating has remained in effect since March 16, 2009.

Where entitlement to compensation 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.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, as in this case, where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required.  Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).  Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time.  Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson 12 Vet. App. at 126-27.

Under Diagnostic Code 5276, a noncommpensable rating is warranted where symptoms are mild and relieved by a built-up shoe or arch support.  A 10 percent rating is awarded for unilateral or bilateral disability that is moderate, characterized by weight-bearing line over or medial to the great toe, inward bowing of the tendo Achillis, and pain on manipulation and use of the feet.  A 30 percent is warranted for bilateral disability when there is severe disability, characterized by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. A maximum 50 percent rating requires bilateral pes planus that is pronounced, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achillis on manipulation, not improved by orthopedic shoes or appliances.  See 38 C.F.R. � 4.71a (2014).

It is not expected, especially with the more fully described grades of disability, that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. � 4.21.  On this issue, the criteria for evaluating pes planus are not expressly written in the conjunctive as there is no "and" in the listed symptoms.  Accordingly, it is not expected that all cases of pes planus will show all the findings specified.  See Dyess v. Derwinski, 1 Vet. App. 448, 455-56 (1991) (applying 38 C.F.R. � 4.21 when evaluating pes planus).  See also Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007) (the cases in which the Court has indicated that 38 C.F.R. � 4.21 applies are those in which the diagnostic criteria are not clearly joined in the conjunctive).   Essentially the criteria for pes planus list symptoms equating to mild, moderate, severe and pronounced pes planus.  Additionally, the criteria for evaluating pes planus are not successive in nature; thus, it is not necessary that all criteria be met for a lower rating to allow for the next higher rating.  See Tatum v. Shinseki, 23 Vet. App. 152, 155-56 (2009).  The rating criteria that most accurately reflects the Veteran's disability picture is of the most importance here.  See 38 C.F.R. � 4.7.

Upon review of the evidence of record and resolving all reasonable doubt in favor of the Veteran, the Board finds that he is entitled to an initial 50 percent rating for bilateral pes planus with arthritis under Diagnostic Codes 5010-5276.  38 C.F.R. � 4.7.  Specifically, the medical and lay evidence of record establishes pronounced, marked pronation, not improved by orthopedic shoes or appliances, thereby meeting several of the criteria for the maximum 50 percent rating.  See 38 C.F.R. � 4.71a.

In making this determination that the Veteran is entitled to an initial 50 percent rating, the Board has considered that all VA treatment records and VA examinations of record dated in September 2009, July 2011, and April 2012 have indicated that the Veteran's pes planus is not improved by orthopedic shoes or orthotics.  Moreover, the April 2012 VA examiner observed "marked" pronation of both feet.  The Veteran also cannot stand for more than a few minutes at a time, exhibits an altered gait, has frequent calluses, and has tenderness and painful arches and swelling of the feet.  He has also reported fatigue and weakness in the feet and numbness to the bottom of both feet.  A September 2009 VA X-ray also confirmed osteoarthritic changes in both feet.  The Veteran takes Morphine and oxycodone to control the pain.  Given the diagnosis of arthritis of both feet, the Board has considered the effects of pain and other factors of functional loss in assigning the current 50 percent rating under Diagnostic Codes 5010-5276.  See 38 C.F.R. �� 4.40, 4.45; 4.59; Mitchell, 25 Vet. App. at 38; DeLuca, 8 Vet. App. at 206.

The Board acknowledges that two of the criteria for a 50 percent rating have not been shown (extreme tenderness of the plantar surfaces of the feet and marked inward displacement and severe spasm of the tendo Achillis on manipulation).  Nevertheless, it is not expected that all cases of pes planus will show all the findings specified.  See again 38 C.F.R. � 4.121; Dyess, 1 Vet. App. at 455-56.  The evidence tends to show that the other two criteria for a 50 percent rating have resulted from the Veteran's bilateral pes planus.  In addition, while not all of the symptoms set forth are shown even for a 30 percent rating, the criteria for evaluating pes planus are not successive in nature.  See Tatum, 23 Vet. App. at 155-56.

The 50 percent rating now assigned under Diagnostic Code 5276 for bilateral pes planus with arthritis is the maximum rating available under this diagnostic code.  Therefore, the Veteran may only receive a higher rating under a different diagnostic code or on an extraschedular basis.

In this regard, the Board has also considered whether an increased evaluation or separate, additional evaluations would be in order under other relevant diagnostic codes for the foot.  The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).  Thus, the Board has considered the propriety of assigning a higher, or separate, rating under another diagnostic code.  See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995).

In any event, other diagnostic codes for foot disabilities are not more appropriate because the evidence of record does not support their application.  See 38 C.F.R. � 4.71a, Diagnostic Code 5277 (weak foot), Diagnostic Code 5278 (claw foot), Diagnostic Code 5279 (Morton's disease), Diagnostic Code 5280 (hallux valgus); Diagnostic Code 5281 (hallux rigidus); Diagnostic Code 5282 (hammer toes), Diagnostic Code 5283 (malunion or nonunion of the tarsal and metatarsal bones), Diagnostic Code 5284 (other foot injury).  No probative medical evidence of record supports application of any of these diagnostic codes.  Therefore, these diagnostic codes will not be applied.  See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence).

The Board has also considered whether a separate and distinct rating is warranted under Diagnostic Code 5010 for the Veteran's bilateral foot traumatic arthritis.  The evaluation of the same disability or the same manifestations of disability under multiple diagnoses is to be avoided.  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 earning capacity."  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.  See also Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) ("two defined diagnoses constitute the same disability for purposes of section 4.14 if they have overlapping symptomatology").

However, when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different diagnostic codes with different ratings.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994).  See also Fanning v. Brown, 4 Vet. App. 225 (1993).  The critical inquiry in making such a determination is whether any of the disabling symptomatology is duplicative or overlapping.  The Veteran is entitled to a combined rating only where the symptomatology is distinct and separate.  Id.

On this issue, with regard to Diagnostic Codes 5010 and 5276, assigning separate ratings for the pes planus and arthritis disabilities under these diagnostic codes would constitute pyramiding, contrary to the provisions of 38 C.F.R. � 4.14.  As noted above, the Board already considered functional loss factors for the Veteran's arthritis in awarding the 50 percent rating above.  In effect, the Veteran is not entitled to separate and additional ratings under these diagnostic codes for pes planus with arthritis, as manifestations of a disability under multiple diagnoses (i.e., pyramiding) is to be avoided under 38 C.F.R. � 4.14.  In this regard, as pain and functional loss is a manifestation of both Diagnostic Codes 5010 and 5276, the Veteran is already compensated by his existing 50 percent rating.  Separate ratings cannot be established.

There is also no basis to "stage" the Veteran's 50 percent rating for this disability, as his symptoms have remained consistent throughout the entire appeal period from March 16, 2009.  Fenderson, 12 Vet. App. at 126.

Accordingly, the Board concludes that the evidence supports a 50 percent rating, but no higher, for the Veteran's service-connected bilateral pes planus with arthritis disability.  38 C.F.R. � 4.3.

As the Court has explained in Thun v. Peake, 22 Vet. App. 111, 115-116 (2008), a "determination of whether a claimant is entitled to an extraschedular rating under � 3.321(b)(1) is a three-step inquiry."  If the RO or Board determines that (1) the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and (2) the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then (3) the case must be referred to an authorized official to determine whether, to accord justice, an extra-schedular rating is warranted.  Id.  See also 38 C.F.R. � 3.321(b)(1).  Neither the RO nor the Board is permitted to assign an extraschedular rating in the first instance; rather the matter must initially be referred to those officials who possess the delegated authority to assign such a rating.  See Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009); Floyd v. Brown, 9 Vet. App. 88, 96-97 (1996).

In this case, there is no evidence of exceptional or unusual circumstances to warrant referring the case for extraschedular consideration for the increased rating claim for the Veteran's service-connected bilateral pes planus with arthritis.  38 C.F.R. � 3.321(b)(1).  The Board finds that the Veteran's symptomatology for his feet is fully addressed by the rating criteria under which the disability is rated.  Because the rating criteria reasonably describe the claimant's disability level and symptomatology for bilateral pes planus with arthritis, the Veteran's disability picture is contemplated by the Rating Schedule, such that the assigned schedular evaluations are, therefore, adequate, and no referral is required.  Thun v. Peake, 22 Vet. App. 111, 115-116 (2008); VAOPGCPREC 6-96.

The evidence does not show anything unique or unusual about the Veteran's bilateral pes planus with arthritis on appeal that would render the schedular criteria inadequate.  There are no additional symptoms of his bilateral pes planus with arthritis on appeal that are not addressed by the Rating Schedule.  For instance, for the bilateral pes planus with arthritis, the Board has considered the Veteran's limitation of motion, pain, and other factors of functional loss listed in 38 C.F.R. �� 4.40 and 4.45 and 4.59 and DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) in granting the 50 percent rating.  Indeed, the Board specifically contemplated the pain, pronation, and functional loss in granting the 50 percent evaluation.

Moreover, there are additional ratings available under other diagnostic codes, but the Veteran has not been shown to have such symptomatology.

In addition, the September 2009 VA examiner noted that, although the Veteran had not worked since 1992, this was due to "other reasons" than his feet.  The July 2011 VA examiner indicated that the Veteran could perform sedentary employment.  Although the Veteran's bilateral pes planus with arthritis disability may interfere with his employment, such interference is contemplated by the schedular rating criteria for which he has been granted a 50 rating for his disability.  See 38 U.S.C.A. � 1155; 38 C.F.R. � 4.1.

Because the threshold step of Thun is not met here, and the Veteran's disability picture is contemplated by the Rating Schedule, it is not necessary to consider the second step of whether the claimant has an exceptional disability picture that exhibits other related factors identified in the regulations as "governing norms," such as marked interference with employment or frequent periods of hospitalization.  22 Vet. App. at 116.  See also 38 C.F.R. � 3.321(b)(1).

Finally, the Board notes that under the Federal Circuit Court's recent holding in the case of Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced.  In the present case, in addition to the service-connected pes planus disability adjudicated above, the Veteran is service-connected for left knee chondromalacia.  However, at present, the Board is remanding the left knee chondromalacia increased rating claim for further development.  In any event, at this juncture, after applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional symptoms that have not been attributed to a specific service-connected disability.  Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions.

Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected bilateral pes planus with arthritis disability on appeal under the provisions of 38 C.F.R. � 3.321(b)(1) have not been met.  Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008).

ORDER

New and material evidence having been submitted, the claim for service connection for a right knee disorder is reopened, and to this extent only, the appeal is granted.

New and material evidence having been submitted, the claim for service connection for a right ankle disorder is reopened, and to this extent only, the appeal is granted.

New and material evidence having been submitted, the claim for service connection for a left ankle disorder is reopened, and to this extent only, the appeal is granted.

New and material evidence having been submitted, the claim for service connection for a low back disorder is reopened, and to this extent only, the appeal is granted.

Subject to the provisions governing the award of monetary benefits, an initial 50 percent rating, but no higher, is granted for bilateral pes planus with arthritis.

REMAND

The following issues are being remanded for further development:  service connection for a right knee disorder, service connection for a right ankle disorder,
service connection for a left ankle disorder, service connection for a low back disorder, service connection for a left shoulder disorder, and an initial disability rating greater than 10 percent for left knee chondromalacia with arthritis.

First, the AOJ has not secured the Veteran's service personnel records from the National Personnel Records Center (NPRC), Records Management Center (RMC), or other appropriate location.  The Veteran has asserted that he was medically discharged from active duty as the result of the effects of an alleged low back injury when he fell down stairs in October 1973.  His service personnel records may be relevant in verifying his alleged in-service injury in October 1973.  See September 2014 hearing testimony at pages 7, 28.

Second, the AOJ should obtain and associate with the claims file any outstanding medical records, to include possible earlier records from the VA Healthcare system in Denver, Colorado, dated after March 2014.  The Veteran has stated that he underwent left knee surgery in July 2014.  See September 2014 hearing testimony at pages 62.  These records would be relevant to his left knee issue on appeal.  Therefore, on remand, the AOJ should attempt to secure any outstanding VA treatment records.

Third, the Veteran testified that he received Social Security Administration (SSA) disability benefits for his low back in the 1990s.  See September 2014 hearing testimony at pages 47-48.  VA is required to obtain relevant records held by any Federal department or agency that the claimant adequately identifies and authorizes VA to obtain.  38 U.S.C.A. � 5103A(c)(3); 38 C.F.R. � 3.159(c)(2).  Although disability determinations by SSA are not controlling on VA, they are pertinent to the adjudication of a claim for VA benefits, and VA has a duty to assist the Veteran in gathering these records.  Voerth v. West, 13 Vet. App. 117, 121 (1999); Hayes v. Brown, 9 Vet. App. 67, 74 (1996).  VA must make as many requests as necessary to obtain "relevant" SSA records, unless a determination is made that the records do not exist or that further efforts would be futile.  38 C.F.R. � 3.159(c)(2).  These federal SSA records are not on file; therefore, the AOJ should attempt to obtain them before deciding the service connection claim for a low back disorder, as these records may be pertinent.  Id.

Fourth, the Veteran should be scheduled for an additional VA examination to ascertain the current severity of his service-connected left knee chondromalacia with arthritis.  He was last provided a VA examination in connection with this claim in April 2012, which was over three years ago.  Notably, he has indicated that he subsequently underwent surgery for the left knee in July 2014.  VA's General Counsel has indicated that, when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate.  See VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994).  Therefore, the Board finds that a more recent VA examination is needed in this case for the left knee.

Fifth, the Veteran should be scheduled for VA examinations and opinions to determine the likely etiology of any current right knee, right ankle, left ankle, and low back disorders.  See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. � 5103A(d)(2); 38 C.F.R. � 3.159(c)(4).  A prior VA examination was conducted for the right ankle in April 2012, but it was not entirely clear in its conclusions.  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

Accordingly, the case is REMANDED for the following action:

1.  The AOJ should contact the NPRC, RMC, or any other appropriate entity and secure the Veteran's complete service personnel records for his period of active military service with the U.S. Army from April 1973 to November 1973.  (Service personnel records may verify whether or not the Veteran had an in-service low back injury from an October 1973 stairs incident or was discharged due to such an injury).

2.  The AOJ should request complete VA treatment records dated from March 2014 to the present, to include earlier VA medical records from the VAMC in Denver, Colorado, for left knee surgery in July 2014.  These records should be obtained and associated with the claims file.

All attempts to secure these records, and any response received, should be documented in the claims file.  If no records are available, a response to that effect is required and should be documented in the file, and the Veteran must be notified.

3.  The AOJ should request the Veteran's records from the SSA pertaining to his disability benefits in the 1990s.  A specific request should be made for copies of any disability determination and all medical records considered for SSA benefits.

All attempts to secure these records, and any response received should be documented in the claims file.  If no records are available or do not exist, a response to that effect should be documented in the claims file, and the Veteran should be notified.

4.  After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service-connected left knee chondromalacia.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.

The examiner should report all signs and symptoms necessary for rating the left knee disability under the rating criteria.  In particular, the examiner should provide the range of motion in degrees and indicate whether there is any ankylosis; dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint; or, the symptomatic removal of semilunar cartilage.  He or she should also address whether the Veteran has recurrent subluxation or lateral instability, and if so, comment as to whether such symptomatology is slight, moderate, or severe.

The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors.

The examiner should provide a complete rationale for any opinions provided.

5.  The AOJ should afford the Veteran a VA examination to determine the nature and etiology of any current left ankle disorder that may be present.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.

The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay assertions.  In particular, the Veteran's service treatment records are negative for any complaints, treatment, or diagnosis of a left ankle disorder.  Following service, the Veteran has reported on several occasions that he sustained a left ankle fracture in 1990 or 1991, when he fell down some stairs.  See VA treatment records dated in 1992; February 1993 VA examination; September 2014 hearing testimony at page 39; April 2012 VA examination.

It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology.  If there is a clinical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.

The VA examiner should identify all current diagnoses for a left ankle disorder.

For each diagnosis identified, the examiner should state whether it is at least as likely as not (i.e., 50 percent or more probable) that the disorder is either caused by or aggravated by his service-connected bilateral pes planus with arthritis.

(The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.)

A clear rationale for the VA medical opinion is required, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.

6.  The AOJ should afford the Veteran a VA examination to determine the nature and etiology of any current right ankle disorder that may be present.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.

The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay assertions.

It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology.  If there is a clinical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.

The examiner should identify all current diagnoses for a right ankle disorder.

For each diagnosis identified, the examiner should state whether the disorder clearly and unmistakably preexisted the Veteran's active duty service.

For each right ankle disorder that preexisted the Veteran's active duty service, the examiner should state whether there is clear and unmistakable unmistakable evidence that there was no permanent increase in disability during service or clear and unmistakable evidence that any increase in disability was due to the natural progress of the preexisting condition.

For each current right ankle disorder that did not preexist the Veteran's active duty service, the examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the right ankle disorder manifested in or is otherwise related to his military service, including any symptomatology therein.

The examiner should state whether it is at least as likely as not (i.e., 50 percent or more probable) that any of the Veteran's current right ankle disorders are either caused by or aggravated by his service-connected bilateral pes planus with arthritis.

In rendering the above opinions, the examiner should also consider the following evidence:

The Veteran's service treatment records document a right ankle strain in August 1973.  The Veteran also complained of right ankle pain in September 1973, at which time arthritis of the anterior head of the talus (right dorsal talus) was noted.

Following service, the Veteran has reported on several occasions that he sustained a right ankle fracture in 1982 at which time he had surgery.  See February 1993 VA examination; April 2012 VA examination.  VA treatment records dated in 2007 and 2008 note complaints of right ankle pain.  The April 2012 VA examiner, after reviewing X-rays of the right ankle, diagnosed right distal tibial fracture involving the tibiotalar joint, right ankle degenerative joint disease, and right ankle gout.  The April 2012 VA examiner proceeded to provide a medical opinion that was not entirely clear regarding aggravation of a right ankle arthritis of the anterior head of the talus that preexisted service.

(The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.)

A clear rationale for the VA medical opinion is required, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.

7.  The AOJ should afford the Veteran a VA examination to determine the nature and etiology of any current right knee disorder that may be present.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.

The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay assertions.

It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology.  If there is a clinical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.

The examiner should identify all current diagnoses for a right knee disorder.

For each diagnosis identified, the examiner should state whether it is at least as likely as not (i.e., 50 percent or more probable) that any of the Veteran's current right knee disorders are either caused by or aggravated by his service-connected bilateral pes planus with arthritis or his service-connected left knee chondromalacia.

In rendering the above opinions, the examiner should also consider the following evidence:

The Veteran has contended, in part, that his right knee problems developed as the result of an altered gait from either his service-connected bilateral pes planus with arthritis or his service-connected left knee chondromalacia.  His service treatment records are negative for any complaints, treatment, or diagnosis of a right knee disorder, except at induction when he reported a history of right knee locking, with no objective findings upon examination at induction.  Following service, VA medical certificates dated in February 1993 and May 1993 first noted right knee bursitis and osteoarthritis.  An April 2010 VA examiner diagnosed prepatellar bursitis of the right knee and previous Osgood-Schlatter's disease upon X-ray.  X-rays dated in May 2010 revealed right knee arthritis.  An April 2012 VA examiner stated that the Veteran underwent right knee surgery in 2011.  The Veteran was diagnosed with right knee gouty arthritis, medial meniscus tear, and degenerative joint disease.

(The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.)

A clear rationale for the VA medical opinion is required, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.

8.   The AOJ should afford the Veteran a VA examination to determine the nature and etiology of any current low back disorder that may be present.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.

The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay assertions.

It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology.  If there is a clinical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.

The examiner should consider the following evidence:

Upon induction into service in February 1973, service treatment records are negative for a low back condition.  However, at separation in September 1973, the Veteran reported having low back pain.  A "congenital" abnormal formation of both latissimus dorsi muscles, left greater than right, was observed.  An X-ray report dated in October 1973 revealed "congenital" nonfusion of the apophysis of L2 facet.  It was noted that the Veteran had been symptomatic for several years.

Following service, the Veteran reported intercurrent injuries to the spine in 1985 (motor vehicle accident), 1987 (hit by street sweeper), and 1990 (fell down stairs). VA treatment records dated in 1992 diagnosed spondylosis, disc herniation, and L4/L5 radiculopathy.  The Veteran underwent a laminectomy and diskectomy in August 1992.  A February 1993 VA examiner diagnosed him with a herniated disk and degenerative changes for the lumbar spine, with the Veteran reporting problems since 1985.  In a January 1994 statement, the Veteran reported back problems since 1985.  VA treatment records dated in 2006 and 2007 and a July 2011 VA examiner diagnosed him with low back degenerative disc disease and degenerative joint disease with moderate canal stenosis and radiculopathy.  A May 2011 VA magnetic resonance imaging (MRI) report noted mild canal narrowing "likely congenital" at L2-L3.

The examiner should then address the following:

a) The VA examiner should identify all current diagnoses for a low back disorder.

b) Does the Veteran have any congenital diseases or defects involving the back?

Under VA law, a defect differs from a disease.
To assist the examiner, for VA adjudication purposes, "disease" generally refers to a condition considered capable of improving or deteriorating, whereas "defect" generally refers to a condition not considered capable of improving or deteriorating.  (As an example, VA considers sickle cell anemia as congenital "disease" for VA purposes, whereas refractive error is considered a congenital "defect.")

c) If the Veteran has a congenital defect, did the Veteran experience a superimposed disease or injury to the lumbar spine during service which resulted in additional disability?

d) If the Veteran has a congenital disease, did this disease clearly and unmistakably preexist the Veteran's active duty service?

e) If the Veteran did have a preexisting congenital low back disease prior to active duty service, is it clear and unmistakable that there was no permanent increase in disability during service or is it clear and unmistakable that any increase in disability was due to the natural progress of the preexisting condition?

f) If the examiner determines that a current low back disorder or congenital disorder did not clearly and unmistakably preexist the Veteran's active duty service, he or she should state whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested in or is otherwise related to his military service, including any symptomatology therein.

g) The examiner should state whether it is at least as likely as not (i.e., 50 percent or more probable) that any of the Veteran's low back disorders are either caused by or aggravated by his service-connected bilateral pes planus with arthritis.

(The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.)

A clear rationale for the VA medical opinion is required, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.

9.  The AOJ should review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full.

10.  After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs.

11.  Thereafter, the AOJ should consider all of the evidence of record and readjudicate the issues on appeal.  If the benefits sought are not granted, the AOJ should issue a Supplemental Statement of the Case and allow the Veteran and his representative an opportunity to respond.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. �� 5109B, 7112 (West).

______________________________________________
J.W. ZISSIMOS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


series: legacy

judge_norm: RYAN T KESSEL

disposition: remanded

text: This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).

text:
Citation Nr: 1532000
Decision Date: 07/28/15    Archive Date: 08/05/15

DOCKET NO.  11-22 153	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines

THE ISSUE

Whether the appellant is a Veteran for the purpose of establishing entitlement to a one-time payment from the Filipino Veterans Equity Compensation (FVEC) Fund.

ATTORNEY FOR THE BOARD

M. G. Mazzucchelli, Counsel

INTRODUCTION

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a decision dated in January 2010 by the Manila, the Republic of the Philippines, Department of Veterans Affairs (VA) Regional Office (RO), which denied the appellant's claim for a one-time payment from the FEVC Fund.  The appellant appealed this decision to the Board.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c).  38 U.S.C.A. � 7107(a)(2) (West 2014).

The appeal is REMANDED to the agency of original jurisdiction.  VA will notify the appellant if further action is required.

REMAND

On his VA Form 9, substantive appeal, the appellant requested a Travel Board hearing before a Veterans Law Judge (VLJ).  In July 2014 correspondence, the Oakland, California RO notified the appellant that his Travel Board hearing was scheduled for a date in September 2014.  In a statement received in August 2014, prior to the scheduled hearing, the appellant indicated that he wished to have a video-conference hearing instead.

Pursuant to 38 C.F.R. � 20.700 (2014), a hearing on appeal will be granted to an appellant who requests a hearing and is willing to appear in person.  See also 38 U.S.C.A. � 7107 (West 2014) (pertaining specifically to hearings before the Board).  Accordingly, and because the RO schedules Board video-conference hearings, a remand of this matter for the RO to schedule the requested hearing is warranted.

Accordingly, the case is REMANDED for the following action:

Schedule the appellant for a Board video-conference hearing in accordance with his request.  Notify the appellant of the date and time of the hearing.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. �� 5109B, 7112 (West 2014).

_________________________________________________
RYAN T. KESSEL
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2014), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. � 20.1100(b) (2014).


judge_norm: JOHN J CROWLEY

disposition: denied

condition: respiratory

text:
Citation Nr: 1533000
Decision Date: 08/03/15    Archive Date: 08/11/15

DOCKET NO.  12-13 287	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri

THE ISSUE

Entitlement to an initial compensable rating for service-connected residuals of a pulmonary embolism.

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

T. Stephen Eckerman, Counsel

INTRODUCTION

The Veteran served on active duty from December 2004 to December 2010.

This matter is on appeal from rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in March 2011.  In June 2014, the Board remanded the claim for additional development.

The Veteran testified before the undersigned Veterans Law Judge in July 2013.  A transcript of the hearing is of record.

This appeal includes documents contained in the Virtual VA paperless claims processing system.  Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records.

FINDING OF FACT

The Veteran's service-connected residuals of a pulmonary embolism are shown to be asymptomatic; factors warranting an extraschedular evaluation are not shown at this time.

CONCLUSION OF LAW

The criteria for an initial compensable evaluation for the Veteran's service-connected residuals of a pulmonary embolism are not shown to have been met at this time.  38 U.S.C.A. �� 1155, 5107 (West 2014); 38 C.F.R. �� 3.102, 3.321(b)(1), 4.1, 4.2, 4.3, 4.7, 4.10, 4.97, Diagnostic Codes 6600, 6817 (2014).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran asserts that he is entitled to an initial compensable evaluation for his service-connected residuals of a pulmonary embolism.  During his hearing, held in July 2013, he stated the following:  He must take Coumadin on a daily basis to keep his blood from clotting.  On a day-to-day basis, he must watch what he eats to avoid excessive intake of Vitamin K, which could lower the levels of Coumadin in his body.  He must watch what medications he takes, as medications such as anti-inflammatories may counteract his Coumadin.  He must be cautions in his daily activities due to an increased risk of "bleeding out."  He has almost daily headaches that last about half an hour, with some dizziness and stomach symptoms such as nausea.

During the past year, he had gone to the doctor about one time out of concern due to headaches and nausea.  He must have laboratory work done once a month to make sure the clotting factors in his blood are within normal limits.  At times, when sitting in a chair, he has some pain at the chest level (lower lung area) where his embolism occurred.  He cannot drink alcohol, ride motorcycles, or play football.  He asserted that his symptoms warrant a compensable evaluation because they are so severe that they prevented him from doing his job in the Navy.

With regard to the history of the disability in issue, the Veteran's service treatment records show that in July 2009, he was hospitalized for multiple pulmonary emboli.
A February 2010 pre-discharge VA report noted that the Veteran was taking 7.5 milligrams (mg.) of Coumadin per day, alternating with 5 mg. He was found to be heterozygous for the factor V Leiden gene and the prothrombin gene EPTE.  All of his studies and ultrasounds were interpreted as normal. He had no residual signs or symptoms of pulmonary emboli, and had no history of peripheral clotting.  There had been no bleeding problems associated with Coumadin.  The condition affected his activities of daily living in that he could not play heavy sports or be in a safety-sensitive situation where he could sustain injury.  It affected potential work and he would not be able to work in police work or any heavy physical labor where he is likely to set off bleeding.  He had a 2 percent chance of bleed each year associated with full-time use of Coumadin.  The diagnoses noted that he would be required to be on full-time Coumadization for life.  The Veteran's separation examination report, and associated documents, did not note any relevant physical findings, other than the presence of headaches.  They noted that the Veteran was taking Coumadin.  Service treatment records show that he was found to have a genetic susceptibility and to require medication, and that this rendered him not physically qualified for service.  He was unable to reenlist when his obligated service ended in December 2010.  See 38 C.F.R. � 4,1 (2014).

In March 2011, the RO granted service connection for residuals of a pulmonary embolism, evaluated as 0 percent disabling (noncompensable).  The Veteran has appealed the issue of entitlement to an initial compensable evaluation.

The Veteran is appealing the original assignment of a disability evaluation following an award of service connection.  In such a case, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. � 1155; 38 C.F.R. � 4.1 (2014).  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned.  38 C.F.R. � 4.7.

The RO has evaluated the Veteran's service-connected residuals of a pulmonary embolism under 38 C.F.R. � 4.97, Diagnostic Code (DC) 6817.  Under this diagnostic code, a 30 percent rating is warranted for "Pulmonary Vascular Disease, Symptomatic, following resolution of acute pulmonary embolism."

A Note to DC 6817 provides that other residuals following pulmonary embolism are to be evaluated under the most appropriate diagnostic code, such as chronic bronchitis (Code 6600), but such evaluation should not be combined with any of the evaluations in Code 6817.

Under Code 6600, a 10 percent rating is warranted for chronic bronchitis with: Forced Expiratory Volume in one second (FEV-1) of 71- to 80-percent predicted; or, FEV-1/Forced Vital Capacity (FVC) of 71 to 80 percent; or, Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 66- to 80-percent predicted.

The post-service medical evidence includes VA reports, dated between 2010 and 2014.

Overall, VA progress notes show that the Veteran was noted to be taking Warfarin (Coumadin), with a history that included factor V deficiency, hypercoagulability state, pulmonary embolism, and anticoagulation.  He was monitored for anti-coagulation therapy on about a monthly basis.  This evidence shows that he was repeatedly noted not to have signs or symptoms of bleeding in 2012, and that between 2013 and 2014, he repeatedly denied having symptoms listed as dark urine, dark stools, excessive bruising, or other signs of bleeding.  There are multiple notations that he had a good appetite, with a stable diet.  With regard to other findings, in December 2010, he complained of a three-day headache with marked improvement with use of over-the-counter analgesics, and that his hands went numb when sitting or laying down.  A neurological examination was normal.  The assessments were tension headaches and paresthesia.  A December 2011 report notes that he was doing well, with no subsequent (post-service) episodes of chest pain or shortness of breath.  A January 2012 report notes that he was an engineering student at a university, that he kept a consistent intake of vitamin K, and that he had daily "current activity."  Reports, dated in February 2013, note that he had pain in his left heel for the past two to three months, especially upon standing, after wearing new cowboy boots.  Has gotten somewhat better with shoe inserts.  He also had pain in his right wrist with certain movements for past two to three months, with no history of injury, that seemed to be improving somewhat, and pain in his right lateral flank only with certain movements.  It was noted that he "works out with weights and cardio nearly every day," and that he thought that his pain or discomfort is lessening.  His blood work was normal.  A May 2013 report shows that the Veteran reported having dizziness that had resolved.  He stated that he had started swimming again and attributed his dizziness to his swimming.  He had no pain or dizziness at present, and had no further concerns or questions. An August 2013 report shows that he reported that he had been landscaping over the summer.

A VA respiratory examination report, dated in September 2012, and an associated April 2013 addendum, show that the Veteran was noted to have an essentially normal physical examination and PFTs (pulmonary function tests).  He was noted to be on anti-coagulant therapies without recurrence.  A physician concluded that his complaints of chest discomfort with deep breathing were not in any way a pathological residual of his PEs (pulmonary embolisms).  His PFT study showed that his post-bronchodilator results for FVC were 102 percent of predicted, that FEV-1 was 106 percent of predicted, and that FEV-1/FVC was 87 percent of predicted.  His FVC values were considered to most accurately reflect his level of disability.  The Veteran's respiratory condition did not affect his ability to work.  A chest X-ray was noted to show that his heart was within normal limits in size and that the cardiomediastinal contours are otherwise unremarkable, with nondistended pulmonary vasculature and no acute infiltrates or effusions identified.  The bony structures were unremarkable.

VA examination reports based on examination in October 2014 include a respiratory examination report, which notes that the Veteran's pulmonary embolism condition was asymptomatic following the resolution of his pulmonary embolism.  His pulmonary embolism was a complication of his blood disorder requiring anti-coagulants for life to prevent any pulmonary embolism or DVTs (deep vein thrombosis).  A pulmonary function test results were characterized as normal for FVC (97 percent post-bronchodilator), and FEV-1/FVC, as well as diffusing capacity.  DLCO was 111 percent of predicted.  FEV-1 was 103 percent post-bronchodilator.  The impression was normal pulmonary function studies.  The Veteran's respiratory condition did not affect his ability to work.

A VA hematologic and lymphatic conditions examination report notes that since service, the Veteran reported no medical complications except for occasional too-high or too-low INR (risk).  He reported spontaneous bruising and frequent easy bruising, and gum bleeds, which were noted to be a common complication of Coumadin therapy.  For "findings, signs and symptoms" due to a hematologic or lymphatic disorder, it was noted that he must avoid injuries and cuts.  There were no recurring infections.  His condition was considered active.  The Veteran was taking Warfarin daily, between 7.5 mg. and 10 mg.  His ability to work was impacted to the extent that he had to avoid all jobs in which he can get injured, and he has to be on Coumadin, a blood thinner, for life.  He had to accommodate his life, job, diet, activities and assess the risk of doing even simple tasks such as making dinner around his illness.  He was going to school for electrical and computer engineering and was to graduate in the Spring of 2016.  Presently he works 20 hours a week helping to create online classes, apparently for a university.  A chest X-ray was noted to show no active heart or lung disease.

Both VA examination reports show the following: the examiners indicated that the Veteran's claims file had been reviewed.  The Veteran's respiratory condition did not require the use of oral bronchodilators, oxygen therapy, and/or oral or parenteral corticosteroid medications, inhaled medications, or antibiotics.

The Board has determined that an initial compensable evaluation is not warranted.  Overall, VA reports indicate ongoing monitoring for anti-coagulation therapy.  VA progress notes show that he has repeatedly been noted not to have signs or symptoms of bleeding, that he repeatedly denied having such symptoms as dark urine, dark stools, excessive bruising, or other signs of bleeding, and that he was noted to have good appetite, with a stable diet.  A September 2012 VA respiratory examination report notes an essentially normal physical examination and pulmonary function tests.  He was noted to be on anti-coagulant therapies without recurrence.  A physician concluded that his complaints of chest discomfort with deep breathing were in any way a pathological residual of his pulmonary embolisms.  The examiner concluded that the Veteran's respiratory condition did not affect his ability to work.  The October 2014 VA examination reports show that his pulmonary function test was characterized as normal.  It was stated that the Veteran's respiratory condition did not affect his ability to work.

The examiner specifically stated that the Veteran's pulmonary embolism condition was asymptomatic, providing evidence against this claim.

In summary, the preponderance of the evidence shows that the Veteran's service-connected for residuals of a pulmonary embolism is asymptomatic, and that the criteria for an initial compensable evaluation under DC 6817 have not been met.  With regard to the possibility of an initial compensable evaluation under DC 6600, the Veteran's pulmonary function tests do not show that the criteria for a compensable evaluation under DC 6600 have been met.

In reaching this decision, the Board has considered the Veteran's assertions that he has headaches.  There was a diagnosis of tension headaches in 2010, however, that diagnosis was not repeated.  There is no evidence to show that a chronic headache disorder exists or is related to his residuals of a pulmonary embolism.  See 38 C.F.R. � 3.310 (2014).  The Board has also considered the various symptoms that the Veteran has reported such as easy bleeding and bruising.  However, VA progress notes, which are considered more probative of this issue, show that he repeatedly denied such symptoms.  Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care).  Based on the foregoing, while the Board understands the Veteran's concerns, the Board finds that the medical evidence does not show that the criteria for an initial compensable evaluation have been met.  Accordingly, the claim must be denied.

Consideration has also been given to whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities."  38 C.F.R. � 3.321(b)(1) (2014); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record).  In determining whether an extra-schedular evaluation is for consideration, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If there is an exceptional or unusual disability picture, the Board must next consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Thun, 22 Vet. App. at 115-16.  When those two elements are met, the appeal must be referred for consideration of the assignment of an extra-schedular rating.  Otherwise, the schedular evaluation is adequate, and referral is not required.  38 C.F.R. � 3.321(b)(1) (2014); Thun, 22 Vet. App. at 116.

Section 3.321(b)(1) does not require the Board to consider whether a veteran is entitled to referral for extraschedular consideration of his service-connected disabilities on a collective basis; rather, extraschedular evaluation is to be awarded solely on a disability-by-disability basis, rather than on the combined effects of those service-connected disabilities.   Johnson v. Shinseki, 26 Vet. App. 237, 241-45 (2013).

In June 2014, the Board remanded this claim and directed inter alia that the Veteran's claim be referred to the Director of Compensation and Pension in order to consider whether he should be entitled to a compensable rating for the residuals of his pulmonary embolism on an extraschedular basis.

In January 2015, the Appeals Management Center (AMC) sent a memorandum in association with the Board's remand.  The AMC noted that the Veteran's service-connected status post pulmonary embolism was currently evaluated as noncompensable, that the Veteran's pulmonary function tests had been normal, that his condition required no oral or inhaled medication, or oxygen therapy, that it has no impact on employment, and that there was no record of frequent hospitalizations, and that a VA examiner had characterized it as asymptomatic.

In March 2015, the Director, Compensation Service stated the following: the AMC's memorandum had been reviewed, together with the claims file.  The Director concluded that, based on the evidence of record, an extraschedular evaluation is not warranted.  The Director stated that the evidence does not show functional impairment beyond that reflected by the rating criteria, and that this finding was confirmed by the VA examinations in 2012 and 2014.  The Director stated that the Veteran's condition has been asymptomatic after initial resolution of his embolism, although he must maintain anti-coagulation therapy (Coumadin) for life.

Although the Board is precluded from initially assigning an extraschedular rating, the Board may review the adjudication of an extraschedular rating once the Director of the Compensation and Pension Service determines that an extraschedular rating is not warranted.  Anderson v. Shinseki, 22 Vet. App. 423 (2009); Floyd v. Brown, 9 Vet. App. 88 (1996).

The Board finds that the schedular evaluation in this case is not inadequate.  When comparing the Veteran's disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that manifestations of the service-connected disability are congruent with the disability picture represented by the disability rating assigned herein.  The criteria for the rating currently assigned more than reasonably describes the Veteran's disability level and symptomatology.  The Veteran is shown to have the need for a restricted diet and avoidance of certain activities, however, there is insufficient evidence of physical findings associated with his disability to show that his schedular evaluation is inadequate, and the Board has determined that it is most accurately characterized as asymptomatic.  The schedular criteria considered contemplate a variety of manifestations of impairment under the term "symptomatic," which is not shown in this case.  38 C.F.R. � 4.97, DC 6817.  Given the ways in which the rating schedule contemplates impairment for the Veteran's disability, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture.  In short, there is nothing exceptional or unusual about the Veteran's disability because the rating criteria reasonably describe his disability level and symptomatology.  Thun, 22 Vet. App. at 115.

Beyond the above, with respect to the second Thun element, the evidence does not suggest that any of the "related factors" are present.  In particular, the Veteran does not contend, and the evidence of record does not suggest, that his disability has caused him to miss work, or has resulted in any hospitalizations.  The evidence indicates that the Veteran's ability to work was impacted to the extent that he had to avoid certain tasks and activities after assessing certain risks, primarily the possibility of bruising or bleeding.  However, the need to avoid certain activities is not shown to impair employment or to otherwise involve a "related factor" under Thun.  While it is clear that the Veteran must avoid certain activities, this is not shown to implicate the "related factors" under Thun.

In fact, there is significant evidence to show that the Veteran remains active and is working half-time while attending classes.  Specifically, it has been noted that he "works out with weights and cardio nearly every day," with one complaint of dizziness which he associated with swimming (with no pain or dizziness present at that time).  There is also a notation in 2013 that the Veteran reported that he had been landscaping over the summer.  During his most recent examination, he was noted to be going to school for electrical and computer engineering and that he was to graduate in the Spring of 2016.  The Board therefore finds that the Veteran's service-connected disability in issue does not result in marked interference with employment or frequent periods of hospitalization.  38 C.F.R. � 3.321(b)(1).  Thus, even if his disability picture was exceptional or unusual, referral would not be warranted.

In deciding the Veteran's claim, the Board has considered the determinations in Fenderson, and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period.  As noted above, the Board does not find evidence that the Veteran's evaluation should be increased for any other separate period based on the facts found during the whole appeal period.  The evidence of record supports the conclusion that the Veteran is not entitled to increased compensation during any time within the appeal period.  The Board therefore finds that the evidence is insufficient to show that the Veteran had a worsening of the disability on appeal such that an increased rating is warranted.

In reaching this decision, the Board has considered the oral and written testimony of the Veteran.  The Board points out that, although a lay person is competent to testify only as to observable symptoms, see Falzone v. Brown, 8 Vet. App. 398, 403 (1995), a layperson is not, however, competent to provide evidence that the observable symptoms are manifestations of chronic pathology or diagnosed disability, unless such a relationship is one to which a lay person's observation is competent.  See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997).  In this case, the Board has determined that the medical evidence is more probative of the issue, and that it outweighs the lay statements.  Accordingly, the Veteran's claim must be denied.

Finally, although the Veteran has submitted evidence of medical disability, and made a claim for the highest ratings possible, he has not submitted evidence of unemployability, or claimed to be unemployable due to the service-connected disability in issue.  The evidence indicates that the Veteran is working half-time and is a currently a student.  Therefore, the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has not been raised by this record.  See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).

In reaching this decision, the Board considered the benefit- of-the-doubt rule; however, as the preponderance of the evidence is against the appellant's claim, such rule is not for application.  38 U.S.C.A. � 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Duty to Notify and Assist

VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. �� 5103, 5103A; 38 C.F.R. �� 3.159, 3.326(a).

As the claim on appeal is for initial compensable evaluation, a VCAA notice need not be provided, where, as here, the claims involves initial increased/compensable evaluations, because the VCAA is no longer applicable.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 491 (2006).

The RO also provided assistance to the appellant as required under 38 U.S.C.A. � 5103A and 38 C.F.R. � 3.159(c), as indicated under the facts and circumstances in this case.  It appears that all known and available records relevant to the issue on appeal have been obtained and are associated with the Veteran's claims files.  The RO has obtained the Veteran's available service treatment reports, as well as his VA medical records.  The Veteran has been afforded examinations during the time period on appeal.

In June 2014, the Board remanded this claim.  The Board directed that the Veteran's treatment records from the VA Medical Center in Kansas City Missouri, or from any other VA treatment center, for the period since 2012, be obtained, and this has been done (no additional private treatment related to his post-embolism symptoms was identified).  The Board directed that the Veteran be scheduled for new VA examination to determine the current nature and severity of the residuals of his prior pulmonary embolism, to include all side effects resulting from his use of anticoagulants (if any).  In October 2014, this was done.  Finally, the Board directed that the Veteran's claim be referred to the Director of Compensation and Pension in order to consider whether he should be entitled to a compensable rating for the residuals of his pulmonary embolism on an extraschedular basis.  In March 2015, this was done, and a memorandum from the Director, Compensation Service, is of record.  Under the circumstances, the Board finds that there has been substantial compliance with its remand.  See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided).

In July 2013, the Veteran was provided an opportunity to set forth his contentions during a hearing before the undersigned.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims recently held that 38 C.F.R. � 3.103(c)(2) requires that the RO Decision Review Officer who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).

Here, during the July 2013 hearing, the undersigned identified the issue on appeal.  Also, information was solicited regarding the severity of the disability in issue, and the source of his treatment.  Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim" were also fully explained.  See Bryant, 23 Vet. App. at 497.  As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2), and that the Board may proceed to adjudicate the claim based on the current record.

Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error.  See Conway  v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).

ORDER

An initial compensable evaluation for service-connected residuals of pulmonary embolism is denied.

____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs