Citation Nr: 0813748 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 06-11 304 ) DATE ) MERGED APPEAL ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a low back disability, to include as secondary to service-connected right ankle fracture. 2. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a right shoulder disability, to include as secondary to service-connected right ankle fracture. 3. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a right knee disability, to include as secondary to service-connected right ankle fracture. 4. Entitlement to service connection for bilateral hearing loss. 5. Entitlement to service connection for bilateral tinnitus. 6. Entitlement to service connection for a bilateral hip disability, to include as secondary to service-connected right ankle fracture. 7. Entitlement to a disability evaluation in excess of 20 percent for a right ankle fracture with osteoarthritis. 8. Entitlement to a compensable disability evaluation for right small finger fracture with osteoarthritis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K.A. Kennerly, Associate Counsel INTRODUCTION The veteran served on active duty in the United States Marine Corps from June 1971 to June 1975 and in the United States Army from October 1984 to February 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA), dated in September 2005 and January 2007. As both of these appeals have been timely perfected and have been merged for the purpose of this adjudication. The veteran filed his original claims of entitlement to service connection for a right knee disability and a low back disability in October 1996. By rating decision in December 1996, the veteran's claims were denied. The veteran did not appeal this rating. In December 2001, the veteran filed a claim of entitlement to service connection for a right shoulder disability. He also requested a reopening of his claim for service connection for right knee disability. By rating decision in June 2002, the veteran's claim was denied. Again, the veteran did not appeal this rating. The veteran filed a petition to reopen the aforementioned claims in May 2005. The September 2005 rating decision denied these claims due to lack of new and material evidence. Inexplicably, the March 2006 statement of the case, addressed these claims on the merits. To establish jurisdiction over the issues of service connection for a right knee disability, a low back disability and a right shoulder disability, the Board must first consider the issue of whether new and material evidence has been submitted to reopen the claims. See 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2007). The Board must proceed in this fashion regardless of the RO's actions. See Barnett v. Brown, 83 F.3rd 1380 (Fed. Cir. 1996) and VAOPGCPREC 05- 92. As discussed fully in the analysis section below, new and material evidence has been submitted to reopen the claims of entitlement to service connection for a low back disability and a right shoulder disability. New and material evidence has not been received sufficient to reopen the veteran's claim of entitlement to service connection for a right knee disability. The veteran testified before the undersigned Acting Veterans Law Judge in December 2007, who was designated by the Chairman to conduct the hearings pursuant to 38 U.S.C.A. § 7102(b) (West 2002 & Supp. 2007) and who participated in this decision. A transcript of that proceeding has been associated with the claims file. The issues of entitlement to service connection for a right shoulder disability, bilateral hearing loss and bilateral tinnitus as well as the issues of entitlement to increased disability ratings for fracture of the right little finger and right ankle fracture are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The veteran will be informed if further action on his part is required. FINDINGS OF FACT 1. The RO denied service connection for a low back disability in December 1996 on the basis that there was no evidence of a chronic disability of the spine; and, the veteran did not appeal this decision. 2. Evidence received since the December 1996 decision relates to unestablished facts necessary to substantiate the claim of service connection for a low back disability, to include as secondary to service-connected right ankle fracture, and raises a reasonable possibility of substantiating the claim. 3. The RO denied service connection for a right shoulder disability in June 2002 on the basis that there was no evidence of a chronic shoulder disability; and, the veteran did not appeal this decision. 4. Evidence received since the June 2002 decision relates to unestablished facts necessary to substantiate the claim of service connection for a right shoulder disability, to include as secondary to service-connected right ankle fracture, and raises a reasonable possibility of substantiating the claim. 5. In a decision dated in June 2002, the RO confirmed a previous (December 1996) RO decision that denied service connection for right knee pain, which had been based on the finding that there was no relationship between a disability or the right knee and his active military service; and, the veteran did not appeal this decision. 6. Evidence received since the June 2002 rating decision is new to the claims file, but does not relate to unestablished facts necessary to substantiate the claim of whether a right knee disability, to include as secondary to service-connected fracture of the right ankle with osteoarthritis, was incurred or aggravated in service, and is not so significant that it must be considered in order to fairly decide the merits of the claim. 7. A low back disability is not shown by competent medical evidence to be linked to service or the veteran's service- connected right ankle fracture. 8. The veteran does not have a currently diagnosed bilateral hip disability. CONCLUSIONS OF LAW 1. New and material evidence has been received since the RO's final, unappealed December 1996 decision, and the claim for service connection for a low back disability, to include as secondary to service-connected right ankle fracture, is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2007); 38 C.F.R. § 3.156 (2007). 2. New and material evidence has been received since the RO's final, unappealed June 2002 decision, and the claim for service connection for right shoulder disabilities, to include as secondary to service-connected right ankle fracture, is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2007); 38 C.F.R. § 3.156 (2007). 3. New and material evidence has not been received for the claim of entitlement to service connection for a right knee disability, to include as secondary to service-connected right ankle fracture; the claim is not reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2007); 38 C.F.R. § 3.156(a) (2007). 4. A low back disability was not incurred in or aggravated by active military service and is not proximately due to or the result of any service-connected disability. 38 U.S.C.A. §§ 1110, 1133, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.310 (2007); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). 5. A bilateral hip disability was not incurred in or aggravated by active military service and is not proximately due to or the result of any service-connected disability. 38 U.S.C.A. §§ 1110, 1133, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.310 (2007); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the veteran or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. The Veterans Claims Assistance Act of 2000 (VCAA) With respect to the veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. Prior to and following the initial adjudication of the veteran's claims, letters dated in June 2005 and October 2006 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2007); Quartuccio, at 187. The veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The aforementioned letters told him to provide any relevant evidence in his possession. See Pelegrini II, at 120-21. Though the veteran was provided with appropriate notice of how disability ratings and effective dates are assigned in the October 2006 notice letter, any questions as these matters are rendered moot since the Board has determined that the preponderance of the evidence is against the claims for service connection. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). With regard to the veteran's petition to reopen his claims of entitlement to service connection for a low back, right shoulder and right knee disabilities, the June 2005 letter appropriately informed him of the reasons his prior claims were denied and the evidence required to reopen his claims. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The Board also concludes VA's duty to assist has been satisfied. The veteran's service medical records and VA medical records are in the file. Private medical records identified by the veteran have been obtained, to the extent possible. The veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The veteran was afforded a VA medical examination in September 2005 to obtain an opinion as to whether his low back disability can be directly attributed to service. Further examination or opinion is not needed on the low back disability claim because, at a minimum, there is no persuasive and competent evidence that the claimed condition may be associated with the veteran's military service. This is discussed in more detail below. The Board also concludes an examination is not needed regarding the veteran's claim of entitlement to service connection for a bilateral hip disability because the only evidence indicating the veteran "suffered an event, injury or disease in service" is his own lay statements. Such evidence is insufficient to trigger VA's duty to provide an examination. The Court has held, in circumstances similar to this, where the supporting evidence of record consists only of a lay statement, that VA is not obligated, pursuant to 5103A(d), to provide an appellant with a medical nexus opinion. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (finding no prejudicial error in Board's statement of reasons or bases regarding why a medical opinion was not warranted because there was no reasonable possibility that such an opinion could substantiate the veteran's claim because there was no evidence, other than his own lay assertion, that " 'reflect[ed] that he suffered an event, injury[,] or disease in service' that may be associated with [his] symptoms"). See also Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (holding that 3.159(c)(4)(i) is not in conflict with § 5103A(d) and evidence of record "establishing that the veteran suffered an event, injury, or disease in service," is required to trigger VA's duties pursuant to § 5103A(d)); Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003) (holding that the Secretary's obligations under § 5103A to provide a veteran with a medical examination or to obtain a medical opinion is triggered if the evidence of record demonstrates "some casual connection between his disability and his military service"). There is no reasonable possibility that a medical opinion would aid in substantiating the veteran's claim for a bilateral hip disability since it could not provide evidence of a past event. Additionally, there is no evidence that the veteran's current hip pain has been diagnosed, nor is there evidence that any such pain is secondary to a service-connected disability. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. New and Material Evidence Prior unappealed decisions are final. However, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim, which has been disallowed. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). The Court has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. See Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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. See 38 C.F.R. § 3.156(a) (2007). According to the Court, the pertinent VA law requires that in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. See Evans v. Brown, 9 Vet. App. 273 (1996). A. Right Shoulder Disabilities and Low Back Disability The issues for resolution before the Board are whether new and material evidence has been received to reopen the veteran's claims of entitlement to service connection for a right shoulder disability and a low back disability, to include as secondary to service-connected right ankle fracture. After a review of the evidence of record, the Board finds that new and material evidence has been received. In December 1996 and June 2002, the RO denied service connection for a low back disability and a right shoulder disability, to include as secondary to service-connected right ankle fracture, respectively. The December 1996 and June 2002 RO decisions are final. See 38 U.S.C.A. § 7105 (West 2002 & Supp. 2007). Although the veteran was treated for low back and right shoulder complaints in service and diagnosed with mechanical low back pain, the RO determined that the veteran's in-service complaints/injuries were acute and transitory and he had no chronic residuals. It was also determined that at the time the rating decisions denied the veteran's claims, he did not have current diagnoses of low back or right shoulder disabilities. At the time of the December 1996 denial of the low back disability claim, only the veteran's service medical records (from June 1971 to June 1975 and from October 1984 to February 1994) were of record. At the time of the June 2002 denial of the right shoulder disability claim, evidence of record included: service medical records; treatment records from Oklahoma Orthopedics, dated December 24, 1996; treatment records from Bryan Memorial Hospital (John C. Yeakley, M.D.) for the period September 3, 1996 to September 30, 1996 and the VA examination report, dated March 4, 2002. Evidence received in the current application to reopen the claims of service connection for a low back disability and right shoulder disabilities, to include as secondary to service-connected right ankle fracture, includes medical evidence from St. Anthony's Hospital, Oklahoma Spine Hospital, Tower Day Surgery, Tulio Figaroa, M.D., John W. Ellis, M.D., Steven Coupens, M.D., Robert L. Remondino, M.D., and Bradley Haskell, M.D. The veteran has been diagnosed with right shoulder impingement, AC joint degenerative joint disease and chondromalacia, Grade 4 and degenerative disc disease with associated facet arthropathy at L5-S1. As noted, claims of entitlement to service connection for a low back disability and a right shoulder disability, to include as secondary to service-connected right ankle fracture, were denied in December 1996 and June 2002 because the RO found that current diagnoses of a low back disability and a right shoulder disability had not been rendered. The Board finds that the additional evidence, which has been newly submitted in conjunction with the current application to reopen the service connection claims, is both new and material as defined by regulation. See 38 C.F.R. § 3.156(a) (2007). Having determined that new and material evidence has been added to the record, the veteran's claims for service connection for a low back disability and a right shoulder disability, to include as secondary to service-connected right ankle fracture, are reopened. See 38 U.S.C.A. § 5108 (West 2002 & Supp. 2007); 38 C.F.R. § 3.156(a) (2007). The issue of entitlement to service connection for a low back disability, to include as secondary to service-connected right ankle fracture, is decided on the merits below. However, the Board cannot, at this point, adjudicate the reopened claim of entitlement to service connection for a right shoulder disability, to include as secondary to service-connected right ankle fracture, as further assistance is required to comply with the duty to assist. This is detailed in the REMAND below. B. Right Knee Disability Prior to discussing whether the veteran has submitted new and material evidence, the Board must first address the definition of a "claim." In Schroeder v. West, the Federal Circuit concluded that a "claim" should be defined broadly as an application for benefits for a current disability. 212 F.3d 1265, 1269 (Fed. Cir. 2000); see also Rodriquez v. West, 189 F.3d 1351, 1353 (Fed. Cir. 1999). The Court applied this definition of a "claim" in Bingham v. Principi, 18 Vet. App. 470, 474 (2004), holding that "direct and presumptive service connection are, by definition, two means (i.e. two theories) by which to reach the same end, namely service connection," and that it therefore "follows logically that the appellant, in seeking service connection ... did not file two separate claims" but rather one claim. Id. In Roebuck v. Nicholson, 20 Vet. App. 307 (2006), the Court held that although 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 the same claim. Especially of note is the issue of finality. In Bingham, the Federal Circuit delineated an additional distinction between claims and theories when considering the question of finality. It held that, pursuant to 38 U.S.C. § 7104(b), "finality attaches once a claim for benefits is disallowed, not when a particular theory is rejected." 421 F.3d at 1348-49. Accordingly, the initial denial of the veteran's claim of entitlement to service connection for a right knee disability in December 1996 encompassed both direct and secondary service connection, regardless of the fact that the veteran did not raise secondary service connection as a theory of entitlement until his current attempt to reopen the claim. See Bingham, supra; Roebuck, supra. As such, the Board will not view the veteran's contentions that his right knee disability is secondary to his service-connected right ankle fracture as a new claim. The veteran must still submit new and material evidence in order to reopen his claim. The veteran brought his original claim for this condition in October 1996. He was denied by a rating decision of the RO in December 1996, finding essentially that although there was one incident of right knee pain in service, no laxity was noted nor was a diagnosis made. The claim was denied due to lack of medical evidence of a chronic diagnosed disability. The veteran did not appeal the December 1996 denial. That decision is final. See 38 U.S.C.A. § 7105 (West 2002 & Supp. 2007). The veteran filed a request to reopen his claim for service connection for right knee disability in December 2001. In a decision dated in June 2002, the RO determined that the veteran had failed to submit new and material evidence to reopen the claim. While evidence of a current right knee disability (chondromalacia and pathologic plica) had been submitted, the RO found that the evidence established that the veteran's knee disability was related to a post-service (1996) injury. The RO determined that the "new" evidence was not material because it did not link the veteran's current knee disability to his active service. As the veteran did not appeal the June 2002 denial, that decision also became final. See 38 U.S.C.A. § 7105 (West 2002 & Supp. 2007). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). As noted above, since the reopening of the veteran's claim was denied on the basis there was no etiological link between a current disability of the knee and his complaints of knee pain in service, which had been previously found to be of an acute and transitory nature, for evidence to be new and material in this matter, (i.e., relating to an unestablished fact necessary to substantiate the claim, and raising a reasonable possibility of substantiating the claim), it would have to tend to show that the veteran has a current right knee disability and that it is the result of a disease or injury in service or secondary to a service-connected disability. The RO received the veteran's VA and private treatment records, including diagnoses of mild tricompartmental osteoarthritis with osteophytes formation and degenerative joint disease. The veteran submitted extensive medical records dated from 1996 to 2006, detailing treatment he received for a right knee disability. This "new" evidence is not material, however. The newly received evidence does not contain any indication that the veteran received a diagnosis of a right knee disability in service, nor was a medical nexus provided relating the veteran's current right knee disability to service. The Board finds that the evidence received since 1996, while relating to unestablished facts necessary to substantiate the claim (i.e. a current diagnosis), it does not raise a reasonable possibility of substantiating the claim (i.e. lack of medical nexus). Therefore, the evidence is not material. The appeal to reopen the veteran's claim for service connection for a right knee disability, to include as secondary to service-connected right ankle fracture, is denied. III. The Merits of the Claims Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110 (West 2002). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. See 38 C.F.R. § 3.303(b) (2007). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2007). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be granted for a disability which is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310(a) (2007); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). In order to establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). A. Low Back Disability The veteran alleges that his reopened claim of entitlement to service connection for a low back disability is either due to his left leg being shorter than his right leg (allegedly the result of service), secondary to his service-connected right ankle fracture. He alternately argues that his low back disability was exacerbated by a right knee disability. As indicated above, the veteran's petition to reopen his previously denied claim of entitlement to service connection for a right knee disability was denied and is therefore not for consideration as a basis of secondary service connection. Indeed, such a theory of entitlement would be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim on the ground of lack of legal merit). Review of the veteran's service medical records reflect the veteran's complaints of low back pain during his second period of service (October 1984 through February 1994). Upon entry into service, the veteran's spine was considered normal on physical examination and the veteran did not indicate he suffered from any low back problems. See Standard Form (SF) 88 and 93, July 12, 1984. In April 1991, the veteran was seen with complaints of low back pain, existing for one week prior to examination. The veteran did not report any specific trauma to the back. See service medical records, April 29, 1991. The veteran was referred for further treatment. The veteran then reported the gradual onset of low back pain, beginning in February 1991. The pain was localized to the lumbosacral area with no radiation. See service medical record, consultation sheet, April 29, 1991. The veteran was noted to have full range of motion and he was diagnosed with mechanical low back pain. Id. X-rays of the lumbar spine taken in conjunction with his complaints revealed no evidence of soft issue or vertebral abnormality. The S-I joints were normal. The impression was a normal study. See service medical records, radiologic consultation report, April 29, 1991. Upon separation in September 1993, the veteran reported that he suffered from recurrent back pain for the prior nine years. See SF 93, September 24, 1993. Upon clinical evaluation, the veteran's spine was considered normal. There was no diagnosed spine disability. See SF 88, September 24, 1993. While there is evidence that the veteran suffered from low back pain during service, he was not diagnosed with a low back disability. The veteran has alleged that his current low back disability is either the direct result of service, or secondary to his service-connected right ankle fracture. At the outset, the Board notes that in August 2000, the veteran suffered from an accident during the course of his employment as a machinist. St. Anthony Hospital Emergency Room records establish that the veteran's right foot slipped while working and he fell forward and twisted his body to the right, injuring his low back. See St. Anthony Hospital private treatment records, August 18, 2000. The veteran has stated that but for his right ankle fracture, he would not have sustained this injury. While the records submitted by the veteran are extensive, there is no evidence of a positive medical nexus linking the veteran's current disability to service or secondary to the service-connected right ankle fracture, other than those attributing the veteran's low back pain to his 2000 accident. To address these questions, the veteran was afforded a VA examination in September 2005. The veteran reported that he had problems with his back in service and re-injured it in 2000 when his right ankle gave way and he fell on the job. In December 2001, the veteran underwent a right L5-S1 hemilaminectomy and discectomy. The cost of this surgery was covered by workers' compensation payments. The veteran reported that his low back pain was alleviated for approximately one year and subsequently returned. Currently, the veteran reports that eating, grooming, bathing and dressing take a longer time than usual because he has to be careful. He has no recreational activities. The veteran was also seen prior to the VA examination to be fitted for a heel lift, as his left leg is shorter than his right. The examiner's impression was degenerative joint disease with disc involvement of the lumbosacral spine, status post surgery in the past with limitation of function due to moderate to severe pain. The examiner noted that after reviewing all of the veteran's medical records, the veteran's left leg was shorter than his right and that he was service-connected for a right ankle fracture. The examiner opined that the veteran's leg length difference (alleged by the veteran to be due to service), if it contributed to his low back pain at all, was not the result of his service- connected right ankle injury. The examiner also noted that since the veteran's right leg was normal in size and the left leg was shorter, the right-sided ankle injury did not contribute to his degenerative joint disease. See VA examination report, September 1, 2005. The only remaining evidence in support of the veteran's claim are lay statements alleging that the veteran's low back disability is related to either service or the service- connected right ankle fracture. The Board acknowledges that the veteran is competent to give evidence about what he experiences; for example, he is competent to discuss his low back pain. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). The Board finds no medical evidence of record in support of the veteran's contentions. Without such a nexus, the veteran's claim must fail. See Hickson, Wallin, supra. As the preponderance of the evidence is against the veteran's claim, the benefit-of-the-doubt rule does not apply, and the veteran's claim of entitlement to service connection for a low back disability, on a direct or secondary basis, must be denied. See 38 U.S.C.A §5107 (West 2002 & Supp. 2007). B. Bilateral Hip Disability The veteran alleges that his current bilateral hip pain is secondary to his service-connected right ankle fracture. The veteran has not alleged that his bilateral hip pain is directly related to service. The service medical records do not contain any reference to treatment or diagnosis of a bilateral hip disability. See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2007). VA outpatient treatment records from April 2004 through November 2005 include complaints of bilateral hip pain. The Board notes that pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. See Sanchez- Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Review of the remaining evidence of record, including: treatment records from VA, the Surgery Center of Oklahoma, St. Anthony's Hospital, the Ellis Clinic, Tower Day Surgery and Social Security Administration medical reports as well as the VA examinations dated in February 2004 and September 2005, does not indicate the veteran has been diagnosed with a current bilateral hip disability. In order to be considered for service connection, a claimant must first have a disability. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). In the absence of a diagnosed bilateral hip disability, service connection may not be granted. See also Degmetich v. Brown, 104 F. 3d 1328 (Fed. Cir. 1997). As the preponderance of the evidence is against the veteran's claim, the benefit-of-the-doubt rule does not apply, and the veteran's claim of entitlement to service connection for a bilateral hip disability, on a direct or secondary basis, must be denied. See 38 U.S.C.A §5107 (West 2002 & Supp. 2007). ORDER The application to reopen the claim of service connection for a low back disability, to include as secondary to service- connected right ankle fracture, is granted, and, to that extent only, the appeal is granted. The application to reopen the claim of service connection for a right shoulder disability, to include as secondary to service-connected right ankle fracture, is granted, and, to that extent only, the appeal is granted. The appeal to reopen the claim for service connection for a right knee disability, to include as secondary to service- connected right ankle fracture, is denied. Entitlement to service connection for a low back disability, to include as secondary to service-connected right ankle fracture, is denied. Entitlement to service connection for a bilateral hip disability, to include as secondary to service-connected right ankle fracture, is denied. REMAND After a thorough review of the veteran's claims file, the Board has determined that additional development must be performed prior to the adjudication of the veteran's claims of entitlement to service connection for a right shoulder disability, bilateral hearing loss and bilateral tinnitus and the issues of entitlement to increased disability ratings for fracture of the right little finger and right ankle fracture. As noted above, the duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Board has reopened the veteran's claim of entitlement to service connection for a right shoulder disability. Evidence of record establishes that the veteran has been diagnosed with right shoulder impingement, degenerative joint disease and chondromalacia. Additionally, service medical records establish that the veteran was treated for a sore shoulder in November 1988. As the veteran has not yet been afforded a VA examination to determine the nature and etiology of his right shoulder disability, he must be afforded such. See McLendon, supra. With regard to the veteran's claims of entitlement to service connection for bilateral hearing loss and bilateral tinnitus, the December 2006 VA examination report is not sufficient to render a decision on these claims. As the Court explained in Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991), the Board may consider only independent medical evidence to support its findings. The Court went on to say that, if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. See Colvin at 175. The December 2006 audiological examiner concluded that it could not be determined whether bilateral hearing loss and/or bilateral tinnitus were related to service due to inconsistencies in testing. This conclusion is not sufficient to render a decision. As such, the veteran's claims must be remanded for a new VA audiological examination. The veteran was last afforded a VA joints examination in July 2005 to assess the severity of his right ankle fracture and right little finger fracture. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Reexamination will be requested whenever VA determines that there is a need to verify either the continued existence or the current severity of a disability. See 38 C.F.R. § 3.327(a) (2007). Generally, reexaminations are required if it is likely that a disability has improved, if the evidence indicates that there has been a material change in a disability, or if the current rating may be incorrect. Id. In this case, testified at his December 2007 personal hearing that there had been a material change in the severity of the veteran's right ankle and right little finger disabilities since he was last examined. Thus, a new examination must be completed. Accordingly, these claims are REMANDED for the following action: 1. The veteran must be scheduled for a VA joints examination to determine the nature and etiology of his right shoulder disability, to include as secondary to the veteran's service- connected right ankle fracture. The examiner must also determine the current severity of the veteran's right ankle disability and right little finger disability. All necessary tests should be performed in conjunction with the examination. The examiner must review the veteran's claims file in conjunction with the examination. This must be noted in the examination report. The examiner must state whether it is at least as likely as not that the veteran's current right shoulder disability is the result of a disease or injury in service. The examiner must state whether it is at least as likely as not that the veteran's right shoulder disability is secondary to the veteran's service- connected right ankle fracture. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. The examiner must then address the current severity of the veteran's right ankle disability and right little finger disability. 2. The veteran must be scheduled for a VA audiological examination with an appropriate expert to determine the nature and etiology of his alleged bilateral hearing loss and bilateral tinnitus. The examiner must review the veteran's claims file in conjunction with the examination. This must be noted in the examination report. The examiner must determine if the veteran has diagnoses of bilateral hearing loss and bilateral tinnitus. If so, the examiner must state whether it is at least as likely as not that the veteran's bilateral hearing loss and bilateral tinnitus are the result of a disease or injury in service. The Board notes that VA has already conceded the veteran was exposed to acoustic trauma in service due to his military occupational specialties. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 3. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). Ensure all directives in this remand have been complied with. 4. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims of entitlement to service connection for a right shoulder disability, bilateral hearing loss and tinnitus and entitlement to increased disability ratings for a right ankle fracture and a fractured right little finger should be readjudicated. If the claims remain denied, a supplemental statement of the case should be provided to the veteran and his representative. After they have had an adequate opportunity to respond, these issues should be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See 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 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 2002 & Supp. 2007). ______________________________________________ M. A. HERMAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs