Citation Nr: 1007132 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 06-26 289 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to an initial compensable evaluation for bilateral hearing loss. 2. Whether new and material evidence has been submitted to reopen the claim for service connection for postoperative degenerative disc disease of the lumbar spine. 3. Whether new and material evidence has been submitted to reopen the claim for service connection for a left shoulder disorder. 4. Entitlement to service connection for vertigo. 5. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for right hip arthritis, to include as due to a service-connected right ankle disorder. 6. Entitlement to service connection for right knee arthritis, to include as secondary to a service-connected right ankle disorder. 7. Entitlement to an increased rating for a right ankle disorder, currently evaluated as 20 percent disabling. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Katz, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1966 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2005, November 2007, and November 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina (RO). The issues of entitlement to service connection for a low back disorder, entitlement to service connection for vertigo, whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a right hip disorder, entitlement to service connection for a right knee disorder, and entitlement to an increased rating for a right ankle disorder are addressed in the remand portion of the decision below, and are remanded to the RO via the Appeals Management Center in Washington, D.C. In March 2009, the Veteran filed a claim to reopen the issue of entitlement to service connection for a right shoulder disorder. However, review of the Veteran's claims file reveals that this issue has not yet been adjudicated by the RO. Therefore, the issue of whether new and material evidence has been submitted to reopen the issue of entitlement to service connection for a right shoulder disorder is referred to the RO for appropriate disposition. FINDINGS OF FACT 1. The medical evidence of record shows that the Veteran's right ear hearing loss is manifested by an exceptional pattern of hearing impairment with Level VI hearing acuity in the right ear. Left ear hearing loss was manifested by no more than Level II hearing acuity. 2. In an August 1992 rating decision, the RO denied the Veteran's claim of entitlement to service connection for a low back disorder because the evidence did not reflect that the Veteran's low back disorder was related to his active duty service. Although provided notice of this decision that same month, the Veteran did not perfect an appeal thereof. 3. In an August 1992 rating decision, the RO denied the Veteran's claim of entitlement to service connection for a left shoulder disorder because the evidence did not show that the Veteran had a left shoulder disorder at that time. Although provided notice of this decision that same month, the Veteran did not perfect an appeal thereof. 4. In a May 2006 rating decision, the RO denied the Veteran's claim to reopen the issue of entitlement to service connection for a left shoulder disorder. Although provided notice of this decision that same month, the Veteran did not perfect an appeal thereof. 5. Evidence associated with the claims file since the unappealed August 1992 rating decision is new and material and raises a reasonable possibility of substantiating the claim for entitlement to service connection for a low back disorder. 6. Evidence associated with the claims file since the unappealed May 2006 rating decision is new and material and raises a reasonable possibility of substantiating the claim for entitlement to service connection for a left shoulder disorder. 7. The Veteran has been shown to have a current left shoulder disorder that is related to his military service. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation of 10 percent, but no more, for bilateral hearing loss have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2009). 2. New and material evidence has been submitted since the RO's August 1992 rating decision, and the Veteran's claim for service connection for a low back disorder is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2009). 3. New and material evidence has been submitted since the RO's May 2006 rating decision, and the Veteran's claim for service connection for a left shoulder disorder is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2009). 4. A left shoulder disorder was incurred in active military service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has certain notice and assistance requirements. 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 (2009). Without deciding whether the notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issues of whether new and material evidence has been submitted to reopen the claims of entitlement to service connection for a low back disorder and a left shoulder disorder, as well as the issue of entitlement to service connection for a left shoulder disorder. This is so because the Board is taking action favorable to the Veteran by reopening the claims for service connection for a low back disorder and a left shoulder disorder, and by granting the Veteran's claim for entitlement to service connection for a left shoulder disorder. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). With respect to the Veteran's claim for entitlement to an initial compensable rating for bilateral hearing loss, 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Prior to the initial adjudication of the Veteran's claim, an August 2004 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Although notice was not provided to the Veteran prior to the initial adjudication of his claim informing him that a disability rating and an effective date would be assigned should the claim of service connection be granted, the Veteran has not been prejudiced. "In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated-it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled." Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006). Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, to include the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007); Sanders v. Nicholson, 487 F.3d. 881, 887 (Fed. Circ. 2007), rev'd on other grounds, Sanders v. Shinseki, 556 U.S. - (2009). Thus, the Board finds that the content requirements of the notice VA is to provide have been met. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran was also accorded several VA examinations during the course of his appeal. 38 C.F.R. § 3.159(c)(4). The Veteran has not indicated that he found these examinations to be inadequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Moreover, the Board finds that the October 2004 and the March 2009 VA examinations obtained in this case are more than adequate, and they provide sufficient detail to determine the severity of the Veteran's bilateral hearing loss. In addition, the Board concludes that the October 2006 VA opinion was sufficiently adequate to determine that the July 2006 QTC examination was inadequate for purposes of rating the Veteran's bilateral hearing loss. Finally, there is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. See Pelegrini, 18 Vet. App. 112. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the 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). I. Increased Rating Claim The Veteran contends that he is entitled to an initial compensable evaluation for his bilateral hearing loss. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2009). 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. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2009). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21 (2009); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). 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 (2009). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where an increase in the disability rating is at issue, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, this rule does not apply here, as the current appeal is based on the assignment of an initial rating for the disability at issue, following an initial award of service connection for bilateral hearing loss. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Instead, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Id. If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time. Id. In various statements and during his November 2009 hearing before the Board, the Veteran contended that he is entitled to an initial compensable evaluation for his bilateral hearing loss. He reported that he cannot hear the television unless it is extremely loud, and that he has no hearing at all in his right hear in some instances. He noted that hearing aids worked well for the left ear, but that he had trouble with the right ear; therefore, he does not wear hearing aids. He stated that he needs to read lips when in a crowd of people or when a lot of people are talking. VA disability compensation for impaired hearing is derived from the application in sequence of two tables. See 38 C.F.R. § 4.85(h), Table VI, and Table VII. Table VI correlates the average puretone sensitivity threshold, derived from the sum of the 1000, 2000, 3000, and 4000 Hertz (Hz) thresholds divided by four, with the ability to discriminate speech, providing a Roman numeral to represent the correlation. Each Roman numeral corresponds to a range of thresholds in decibels and of speech discriminations in percentages. The table is applied separately for each ear to derive the values used in Table VII. Table VII prescribes the disability rating based on the relationship between the values for each ear derived from Table VI. See 38 C.F.R. § 4.85. When the puretone threshold at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hz is 55 decibels or more, the Roman numeral designation for hearing impairment is determined from either Table VI or Table VIa, whichever results in a higher number. Each ear is evaluated separately. 38 C.F.R. § 4.86(a). When the puretone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz, the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results is the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear is evaluated separately. 38 C.F.R. § 4.86(b). By a June 2005 rating decision, service connection for bilateral hearing loss was granted, and a noncompensable evaluation was assigned under 38 C.F.R. § 4.85, Diagnostic Code 6100, effective July 24, 2004. That same month, the Veteran filed a notice of disagreement with regard to the noncompensable rating assigned, and in July 2006, he perfected his appeal. In a July 2004 statement, A.W., M.S., CCC-A reported that the Veteran underwent an audiological evaluation that same month which revealed bilateral moderate sloping to profound sensorineural hearing loss, and that his bilateral hearing loss was most likely related to inservice noise exposure. The results of the July 2004 audiological evaluation were not provided. The results of a July 2004 audiological evaluation prepared by A.J., M.D. were also obtained; however, the evaluation contains uninterpreted puretone audiometry graphs which are not in a format that is compatible with VA guidelines and therefore cannot be considered. See Kelly v. Brown, 7 Vet. App. 471, 474 (1995) (holding that the Board may not interpret graphical representations of audiometric data). The records reflect a diagnosis of sensorineural hearing loss second to service-connected high frequency noise exposure. In October 2004, the Veteran underwent a VA audiological examination. The report notes the Veteran's complaints of bilateral hearing loss and his reported history of inservice noise exposure. On the authorized audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 70 80 85 LEFT 25 25 45 65 75 The puretone threshold average was 66 in the right ear and 53 in the left ear. Speech audiometry revealed speech recognition ability of 92 percent in the right ear, and 94 percent in the left ear. The examiner diagnosed right ear moderately severe sensorineural hearing loss and left ear moderate sensorineural hearing loss. Private medical treatment records from January 2006 through February 2006 reveal complaints of and treatment for bilateral hearing loss. A January 2006 treatment record reflects that the Veteran underwent an audiological evaluation. However, the evaluation contains uninterpreted puretone audiometry graphs which are not in a format that is compatible with VA guidelines and therefore cannot be considered. See Kelly, 7 Vet. App. at 474 (holding that the Board may not interpret graphical representations of audiometric data). The records also reflect that the Veteran reported that he lost hearing in his right year three years before. February 2006 treatment records note the Veteran's complaints of bilateral hearing loss In July 2006, the Veteran underwent a QTC audiological examination. The report notes the Veteran's complaints of bilateral hearing loss and his reported history of noise exposure during service. The Veteran reported current symptoms including decreased hearing with functional impairment including difficulty understanding conversational speech in certain environments. Physical examination revealed the right and left auricles to be within normal limits. An external ear examination was also within normal limits, and the examiner noted that there was hearing loss present in both the right and the left ears. On the authorized audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 65+ 70+ 75+ 80+ 80+ LEFT 65 70+ 75+ 80+ 80+ The puretone threshold average was 76 in the right ear and 76 in the left ear. Speech audiometry revealed speech recognition ability of 0 percent in the right ear, and 24 percent in the left ear. The level of presentation was 110 decibels in the right ear and 100 decibels in the left ear. The examiner diagnosed bilateral sensorineural hearing loss which "has progressed to profound hearing loss with no measurable speech recognition in the right ear, [and] moderately severe to profound hearing loss with significantly decreased speech recognition in [the] left ear . . . ." In October 2006, the Veteran presented for another VA audiological examination. However, the VA examination report reflects that, on the authorized audiological evaluation, puretone thresholds, in decibels, could not be determined. In addition, speech recognition ability could not be determined. The examiner explained that audiological test results could not be determined due to "inconsistent responses and involuntary responses significantly different from volunteered thresholds." The examiner further reported that the Veteran's voluntary responses demonstrated a strong element of functional overlay. After reviewing the Veteran's claims file and the July 2006 QTC audiological examination, the VA examiner stated that the July 2006 audiological testing "is inadequate to [diagnose] the type or degree of [the Veteran's hearing loss]." The examiner explained that the July 2006 examiner reported that the Veteran was pursuing amplification, suggesting that he was not wearing amplification at that time. The VA examiner further noted that the July 2006 examiner did not comment on any difficulty experienced communicating with the Veteran, "although, at the recorded hearing levels, he would have been unable to converse [with] the patient [without] assistive device . . . ." The VA examiner further noted that the July 2006 examiner did not comment on speech recognition threshold levels, bone-conduction thresholds, intra- or inter-test agreement, or report the results of Stengers, immittance measure, or objective verification of hearing levels from such testing as otoacoustic emissions. Thus, the VA examiner concluded that the July 2006 QTC audiological testing was inadequate. VA treatment records from April 2007 through November 2007 reveal that the Veteran was provided with hearing aids. A May 2007 audiological evaluation noted complaints of a longstanding decline in hearing sensitivity with the right ear worse than the left. Physical examination revealed that tympanometry results yielded Type A curves in both ears, and that puretone test results showed an asymmetrical sensorineural hearing loss. There was right ear moderate sloping to severe sensorineural hearing loss from 250 Hz to 8000 Hz, and left ear mild sloping to severe sensorineural hearing loss from 500 Hz to 8000 Hz. Word recognition was reported to be "fair" in each ear when tested at comfortable listening levels. A June 2007 treatment record indicates that the Veteran was seen for a hearing aid fitting. A July 2007 treatment record reflects that the Veteran reported that, on some occasions, he had hearing loss for five hours. The diagnosis was bilateral sensorineural hearing loss, right worse by 10 to 15 decibels. In a June 2007 statement, of friend of the Veteran reported that the Veteran's hearing was a constant problem. In March 2009, the Veteran underwent another VA audiological examination. The report notes his complaints of hearing loss, with particular difficulty hearing women's and children's voices and using the telephone. On the authorized audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 65 75 85 LEFT 20 30 55 70 80 The puretone threshold average was 66 in the right ear and 59 in the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear, and 100 percent in the left ear. Tympanograms were normal, and acoustic reflexes were present at expected levels with no evidence of decay. A Stengers test was positive at 250 Hz and negative at 1500 Hz. Speech recognition threshold and puretone threshold average agreement was poor. The examiner noted that this discrepancy, in addition to a positive Stenger test, "suggests that volunteered hearing levels continue to exhibit a degree of functional overlay," and that repeated testing was unlikely to yield significant improvement. The diagnosis was mild to severe bilateral sensorineural hearing loss. The Veteran's hearing loss as shown in the October 2004 VA audiological examination results in Level II hearing acuity in the right ear, and Level I hearing acuity in the left ear. The Veteran's hearing loss as shown in the March 2009 VA audiological examination results in Level II hearing acuity in the right ear, and Level II hearing acuity in the left ear. 38 C.F.R. § 4.85, Table VI. Although the results of the July 2006 QTC examination reflected Level XI hearing acuity in the right ear and Level XI hearing acuity in the left ear, the Board does not find the results of that examination to be persuasive. First, as explained by the October 2006 VA examiner who reviewed the results of the July 2006 examination as well as all of the evidence of record, the results of the July 2006 audiological evaluation were "inadequate to [diagnose] the type or degree of [the Veteran's hearing loss]." The October 2006 examiner discussed the July 2006 examiner's failure to comment on the Veteran's difficulty communicating because, absent hearing amplification, the Veteran would have been unable to converse with the examiner. In addition, the October 2006 examiner noted that the July 2006 examiner failed to comment on speech recognition threshold levels, bone-conduction thresholds, intra- or inter-test agreement, or report the results of Stengers, immittance measure, or objective verification of hearing levels from such testing as otoacoustic emissions. In addition, the results of the July 2006 audiological test are inconsistent with the subsequent evidence of record. Specifically, a May 2007 VA treatment record reflects that there was diagnosed right ear moderate sloping to severe sensorineural hearing loss from 250 Hz to 8000 Hz, left ear mild sloping to severe sensorineural hearing loss from 500 Hz to 8000 Hz, and that word recognition was "fair." Further, the results of the March 2009 VA audiological examination are inconsistent with the findings reported in the July 2006 examination, and report speech recognition findings of 96 percent in the right ear and 100 percent in the left ear. For these reasons, the Board accords little probative value to the results of the July 2006 audiological examination, and the results of that examination will not be relied upon to determine the severity of the Veteran's bilateral hearing loss. The assignment of disability evaluations for hearing impairment is a purely mechanical application of the rating criteria from which the Board cannot deviate. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992); see also Massey v. Brown, 7 Vet. App. 204, 208 (1994) (finding the Board may only consider the specific factors as are enumerated in the applicable rating criteria). With a numeric designation of II for the right ear and I for the left ear, or with a numeric designation of II for the right ear and II for the left ear, the point of intersection on Table VII requires assignment of a noncompensable rating under Diagnostic Code 6100. However, the rating criteria provide for rating exceptional patterns of hearing impairment under the provisions of 38 C.F.R. § 4.86. The Veteran's test results from October 2004 and March 2009 do not demonstrate that the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) was 55 decibels or more in either ear. However, the October 2004 VA examination showed that there were puretone thresholds of 30 decibels at 1000 Hz and 70 decibels at 2000 Hz in the right ear. Neither the October 2004 nor the March 2009 examination reports showed that there were puretone thresholds of 30 decibels or less at 1000 Hz and of 70 decibels or more at 2000 Hz in the left ear. Thus, the Veteran's right ear hearing loss satisfies the criteria for an exceptional pattern of hearing loss, but the Veteran's left ear hearing loss does not. With exceptional patterns of hearing impairment, the Roman numeral designation for hearing impairment will be determined from either Table VI or Table VIa, whichever results in the higher numeral. As noted above, applying Table VI to the October 2004 results reveals a numeric designation of Level II in the right ear. However, applying Table VIa to the October 2004 results reveals a numeric designation of Level V in the right ear, which is elevated to Level VI under the rating criteria. See 38 C.F.R. §§ 4.85, 4.86, Table VIa, Diagnostic Code 6100. Because each ear is evaluated separately and the left ear does not satisfy the exceptional pattern for hearing impairment, the Board will assume a Level II hearing acuity for the left ear, which is the highest level of hearing loss shown by the medical evidence of record in the March 2009 VA examination. Applying these findings to 38 C.F.R. § 4.85, Table VII of the Schedule results in a 10 percent evaluation for hearing loss under Diagnostic Code 6100. The Board also considered the holding in Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007), which requires a VA audiologist to describe the functional effects of a hearing loss disability in the examination report. The VA examiner in March 2009 provided an adequate description of the functional effects of the Veteran's hearing loss, noting the Veteran's complaints of difficulty hearing in noisy environments, difficulty hearing women's and children's voices, and difficulty hearing on the telephone, and reporting information concerning the functional aspects of his disability. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). Thus, based on the current audiometric findings, a 10 percent initial evaluation for bilateral hearing loss is warranted. The 10 percent disability evaluation assigned herein is the highest rating warranted for the appeal period. See Fenderson, 12 Vet. App. at 126. Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2009). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2009). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, a task performed either by the RO or the Board. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical"). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's bilateral hearing loss disability picture is not so unusual or exceptional in nature as to render the ratings for this disorder inadequate. The criteria by which the Veteran's bilateral hearing loss is evaluated specifically contemplate the level of impairment caused by that disability. Id. As demonstrated by the evidence of record, the Veteran's hearing loss disability is manifested by a maximum of Level VI hearing acuity in the right ear and Level II hearing acuity in the left ear. See 38 C.F.R. § 4.85, Table VI. When comparing this with the hearing acuity contemplated by the Rating Schedule, the Board finds that the schedular evaluations regarding the Veteran's bilateral hearing loss disability are not inadequate. A rating in excess of 10 percent is provided for certain audiological findings but the medical evidence reflects that those findings are not present in this case. Therefore, the schedular evaluation is adequate and no referral is required. See 38 C.F.R. § 4.85; see also VAOPGCPREC 6-96; 61 Fed. Reg. 66749 (1996). In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence does not show findings that meet the criteria for an initial evaluation in excess of 10 percent at any point during the period on appeal, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Massey, 7 Vet. App. at 208 (the Board may only consider the specific factors as are enumerated in the applicable rating criteria). II. New and Material Evidence Claims The Veteran contends that he has submitted new and material evidence sufficient to reopen his claims of entitlement to service connection for a low back disorder and a left shoulder disorder. Although a decision is final, a claim will be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108. Because the August 1992 RO decision is the last final disallowance with regard to the Veteran's claim for service connection for a low back disorder, and because the May 2006 RO decision is the last final disallowance with regard to the Veteran's claim for entitlement to service connection for a left shoulder disorder, the Board must review all of the evidence submitted since those actions to determine whether the Veteran's claims for service connection should be reopened and readjudicated on a de novo basis. Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). If new and material evidence is presented with respect to a claim which has been disallowed, the Board shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108. 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. "New" evidence means existing evidence not previously submitted to VA. "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. See 38 C.F.R. § 3.156(a). The Veteran's initial claim seeking service connection for a low back disorder was denied by the RO in an August 1992 rating decision on the basis that the evidence did not show that the Veteran's low back disorder was related to service. The Veteran's initial claim seeking service connection for a left shoulder disorder was also denied by the RO in an August 1992 rating decision, because the evidence did not show that the Veteran had a left shoulder disorder at that time. Although provided notice of the August 1992 decision that same month, the Veteran did not timely file a notice of disagreement thereafter. Thus, the August 1992 RO decision is final based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104 (2009). In July 2005, the Veteran filed a claim to reopen the issue of entitlement to service connection for a left shoulder disorder. In a May 2006 rating decision, the RO declined to reopen the Veteran's claim for entitlement to service connection for a left shoulder disorder because the Veteran had not submitted new and material evidence of a current left shoulder disorder. Although provided notice of this decision that same month, the Veteran did not timely file a notice of disagreement thereafter. Thus, the May 2006 RO decision is final based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104. In this case, although the RO found in a November 2007 rating decision that the Veteran had not submitted new and material evidence to reopen his claim of entitlement to service connection for a left shoulder disorder, in a February 2009 statement of the case, the RO reopened the Veteran's claim of entitlement to service connection for a left shoulder disorder. Similarly, while the RO found in a May 2006 statement of the case and in January 2007, March 2009, and June 2009 supplemental statements of the case that the Veteran's claim for service connection for a low back disorder was not reopened, in its June 2005 rating decision, the RO found that the Veteran had submitted new and material evidence to reopen his claim of entitlement to service connection for a low back disorder. However, the RO's determinations are not binding on the Board, and the Board must first decide whether new and material evidence has been received to reopen the claims. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993) (holding that Board reopening is unlawful when new and material evidence has not been submitted). Because the August 1992 rating decision is the last final disallowance for the Veteran's claim of entitlement to service connection for a low back disorder, and because the May 2006 rating decision is the last final disallowance with regard to the Veteran's claim of entitlement to service connection for a left shoulder disorder, the Board must review all of the evidence submitted since those actions to determine whether the Veteran's claims should be reopened and readjudicated on a de novo basis. Evans, 9 Vet. App. at 282-83. a. Low Back Disorder Comparing the evidence received since the RO's August 1992 rating decision to the previous evidence of record, the Board finds that the additional evidence submitted includes evidence which is new and material to the issue of entitlement to service connection for a low back disorder. Specifically, the Veteran submitted various statements and provided testimony indicating that he injured his low back when he was thrown from a truck during service, and that he has had low back pain continuously since that time. In addition, the Veteran reported that Dr. W.O., the doctor who performed his low back surgery in 1983, told him that his low back disorder was caused by scar tissue from the abrasions that he incurred when he was thrown from the back of a truck during service. As the evidence received by the RO and the Board since the August 1992 rating decision reveals statements and testimony of continuity of symptomatology of low back pain during service and since service discharge, the evidence relates to an unestablished fact necessary to substantiate the claim. Further, the statements and testimony provided by the Veteran were not of record at the time of the RO's August 1992 rating decision. Thus, this newly received evidence raises the possibility of substantiating the Veteran's claim for service connection herein. Accordingly, new and material evidence has been submitted, and the claim for service connection for a low back disorder is reopened. b. Left Shoulder Disorder Comparing the evidence received since the RO's May 2006 decision to the previous evidence of record, the Board finds that the additional evidence submitted includes evidence which is new and material to the issue of entitlement to service connection for a left shoulder disorder. The newly submitted evidence includes numerous diagnoses of a left shoulder disorder. Private medical treatment records show diagnoses of left shoulder pain, shoulder joint pain, subacromial bursitis with possible rotator cuff dysfunction of the left shoulder and associated cubital tunnel syndrome, mild acromioclavicular joint hypertrophy of the left shoulder, labral degeneration of the superior labrum in the left shoulder, adhesive capulitis of the left shoulder, and left shoulder impingement. As the evidence received by the RO and the Board since the May 2006 rating decision reveals medical evidence of a current diagnosis of a left shoulder disorder, which was the basis for the RO's initial denial of the Veteran's claim on the merits in August 1992, the Board finds that this newly received evidence raises the possibility of substantiating the Veteran's claim for service connection herein. Accordingly, new and material evidence has been submitted, and the claim for service connection for a left shoulder disorder is reopened. III. Service Connection Claim The Veteran contends that his current left shoulder disorder is related to active duty service. During his November 2009 hearing before the Board, the Veteran testified that he injured his left shoulder during service when he was thrown off the back of a truck in June 1968. He noted that he awoke in a hospital with his arm in a brace and his shoulder in a sling, and that he was placed on light duty thereafter for five months. He reported treatment including steroid injections. The Veteran also testified that he re-injured his left shoulder in 2007 when he tried to grab the side of a utility building while falling as a result of his service- connected right ankle disorder. He noted that his arm locked on the building, and that he felt tingling and "tore up." He reported that he underwent left shoulder surgery thereafter. Service connection may be granted for disability due to a disease or injury which was incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disorder, the following must be shown: (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. Hickson v. West, 12 Vet. App. 247, 253 (1999) ; see also Pond v. West, 12 Vet App. 341, 346 (1999). The Veteran's service treatment records reveal that the Veteran presented to his station hospital in June 1968 and reported that he was blown off of the back of a truck. Treatment included x-rays of the elbow and pelvis, the cleaning of abrasions, a radiographic skull series, the closing of lacerations on the right elbow, and a tetanus shot. A treatment record dated the following day reveals that dressing was removed and changed in the "shoulder area." An August 1970 separation examination reveals that the Veteran's upper extremities were normal VA treatment records from January 1990 reflect that the Veteran had left shoulder bursitis. Private medical treatment records from August 1990 note the Veteran's complaints of left shoulder pain. A July 1992 VA examination notes the Veteran's complaints of constant left shoulder pain and stiffness, and that the pain was worse with weather changes and abduction. The Veteran reported that his left shoulder pain began after he was thrown from the back of a truck in 1968 during service. Physical examination revealed the left shoulder to be nontender with no crepitus. Range of motion showed abduction to 90 degrees, forward elevation to 90 degrees, external rotation to 85 degrees with pain, and internal rotation to 75 degrees with pain. X-rays of the left shoulder revealed no significant pathological findings. The diagnosis was "[b]ilateral shoulder pain, no disease found." In a February 2007 letter, J.F., M.D. noted the Veteran's complaints of left shoulder pain with tingling in the left hand. Dr. J.F. also reported that the Veteran injured his left shoulder during service when he was thrown from the back of a truck, hitting the left side of his body. Dr. J.F. stated that the Veteran "has had residual pain on his left side, principally in the shoulder and arm since then." Dr. J.F. concluded that the Veteran's left shoulder disorder "occurred while [the Veteran] was serving in the Marine Corp," and that it is a "service related disabilit[y]." In June 2007, S.W., a friend of the Veteran, submitted a statement in support of his claim. She reported that she has known the Veteran since 1987, and that his left shoulder has been a major medical problem since she has known him. During a May 2008 hearing before the RO, the Veteran testified that he injured his left shoulder during service when he was thrown from the back of a truck. He noted that he had abrasion burns all down his back and side, and that his shoulder was locked and that he could not move it. Private medical treatment records from March 2007 through May 2009 reveal continued complaints of and treatment for a left shoulder disorder. The treatment record reveal that the Veteran was administered numerous epidural injections in the left shoulder due to left shoulder pain. A March 2007 magnetic resonance imaging scan of the left shoulder revealed no evidence of rotator cuff tear, some mild acromioclavicular joint hypertrophy, and labral degeneration of the superior labrum. A March 2007 x-ray of the left shoulder was normal, but revealed subacromial bursitis with possible rotator cuff dysfunction and associated cubital tunnel syndrome. A March 2007 treatment record notes the Veteran's complaints of left shoulder pain radiating down his left arm. The Veteran reported that he injured his shoulder many years before, and that his left shoulder has never been "quite right." The diagnosis was shoulder joint pain. In June 2008, the Veteran complained of a long-standing history of left shoulder pain and discomfort. The diagnosis was left shoulder impingement, and surgery was recommended. In June 2008, the Veteran underwent arthroscopic subacromial decompression and arthroscopic labral debridement. The diagnosis was left shoulder impingement and adhesive capsulitis. June 2008 treatment records reveal that the Veteran reported that he injured his left shoulder that month when he slipped and fell after his right ankle gave way. He noted that, as he turned to answer the telephone, his ankle gave way, and he hit an ottoman with his shoulder on the way down. The diagnosis was shoulder joint pain. In October 2008, the Veteran underwent a manipulation of the left shoulder under anesthesia. The diagnosis was adhesive capsulitis of the left shoulder. Another October 2008 treatment record notes the Veteran's complaints of left shoulder pain. The report indicates that the Veteran was progressing well post-operatively, but that he still had some residual pain. VA treatment records from May 2008 through May 2009 note the Veteran's complaints of and treatment for a left shoulder disorder. A May 2008 treatment record reflects the Veteran's complaints of shoulder pain. The diagnosis was left subacromial bursitis with tenderness over the bursa. A May 2009 treatment note indicates that the Veteran had a rotator cuff tear which was surgically repaired during 2008, but that he continued to have pain and stiffness requiring manipulation of the shoulder under anesthesias. The diagnosis was left shoulder pain with ongoing symptoms. In October 2008, the Veteran underwent another VA examination. The Veteran reported that he dislocated his left shoulder and had multiple abrasions and burns on his body after he was thrown from the back of a truck in 1968. The Veteran stated that, from 1968 through 2002, he had pain in his shoulder with popping and cracking, and that he underwent left shoulder surgery in June 2008 to repair a partial thickness tear of the supra-spinatus and infra- spinatus tendon. Physical examination of the shoulder revealed significant atrophy about the left shoulder scapular stabilizers. Range of motion revealed abduction to 80 degrees, flexion to 100 degrees, extension to 10 degrees, internal rotation to 45 degrees, and external rotation to 0 degrees. Pain and stiffness were limiting factors for all planes of range of motion, particularly more so posteriorly than anteriorly. There was no change on range of motion with repetition. Shoulder abduction strength was grade 3+ with shoulder pain. Elbow flexion was grade 5- with shoulder pain. Sensation was intact to light touch proximally in the left upper extremity. Distally, there was some decrease for present light touch in the left fourth and fifth fingers. The examiner noted that the Veteran had a diagnosis of cubital tunnel syndrome. There was pain on palpation both posteriorly over the upper trapezius and posterior deltoid muscles, as well as anteriorly over the pectoralis muscles. There was no ankylosis. The diagnosis was "[p]artial thickness rotator cuff tear repair done in May of 2008." After reviewing the Veteran's claims file, the VA examiner noted that the Veteran's records indicated that he was involved in some sort of accident falling off of a truck, that there were abrasions over his left shoulder, that he had a scan consistent with degenerative joint disease through 2007, and that a repeat scan in 2008 showed a new partial thickness tear. However, the VA examiner concluded that "it would be mere speculation to suggest that the patient's current symptoms are related to his injury in the military." After a thorough review of the evidence of record, the Board concludes that service connection for a left shoulder disorder is warranted. As discussed above, there is evidence of current diagnoses of a left shoulder disorder. Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation); see also McLain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran's service treatment records reflect that he was injured in June 1968 after he was thrown from the back of a truck, and that a dressing was changed in his shoulder area the following day. In addition, the Veteran has contended that he injured his left shoulder at the time of the injury documented in his service treatment records when he was thrown from the back of a truck. The Veteran is considered competent to relate that he injured his left shoulder during service, and there is no reason to doubt the credibility of his statements. See 38 C.F.R. § 3.159(a)(2); See also Hickson, 12 Vet. App. at 253 (holding that service connection requires medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2006) (noting that the Board must determine whether lay evidence is credible due to possible bias, conflicting statements, and the lack of contemporaneous medical evidence, although that alone may not bar a claim for service connection); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). Thus, there is credible evidence that the Veteran injured his left shoulder during service. Additionally, the medical evidence of record demonstrates that the Veteran's left shoulder disorder is related to military service. Hickson, 12 Vet. App. at 253 (holding that service connection requires medical evidence of a nexus between the claimed in-service disease or injury and the current disability). Specifically, in a February 2007 letter, J.F., M.D. noted the Veteran's history of an inservice left shoulder disorder as well as the Veteran's report of continuous left shoulder pain since service, and concluded that the Veteran's left shoulder disorder was related to his active duty service. The Board acknowledges the October 2008 VA examiner's opinion that an opinion as to whether the Veteran's left shoulder disorder was related to his inservice left shoulder injury could not be made without resort to mere speculation. However, as a conclusive opinion as to the etiology of the Veteran's left shoulder disorder was not provided, the October 2008 VA examiner's opinion is of little evidentiary value and amounts to what in essence is "nonevidence" of an etiological relationship to service. See Sklar v. Brown, 5 Vet. App. 104, 145-6 (1993) (holding that where a physician is unable to offer a definite causal relationship that opinion may not be utilized in establishing service connection as such an opinion is nonevidence). Thus, the only medical evidence which speaks to the relationship between the Veteran's current left shoulder disorder and his inservice shoulder injury is the opinion of J.F., M.D., who concluded that the Veteran's left shoulder disorder is related to his inservice shoulder injury. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board is not free to substitute its own judgment for that of such an expert). Accordingly, because there is a current left shoulder disability, evidence of an inservice left shoulder injury, and a private medical opinion concluding that the current left shoulder disability is related to the inservice shoulder injury, the Board finds that service connection for a left shoulder disorder is warranted. Gilbert, 1 Vet. App. at 53- 56. ORDER An initial evaluation of 10 percent, but no more, for bilateral hearing loss is granted, subject to the laws and regulations governing the payment of monetary benefits. New and material evidence having been received, the claim for entitlement to service connection for a low back disorder is reopened; the claim is granted to this extent only. New and material evidence having been received, the claim for entitlement to service connection for a left shoulder disorder is reopened. Service connection for a left shoulder disorder is granted. REMAND I. Right Hip Disorder, Right Knee Disorder, Right Ankle Disorder A review of the Veteran's claims file reveals that the issues of whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a right hip disorder, entitlement to service connection for a right knee disorder, and entitlement to an increased rating for a right ankle disorder are not ready for appellate disposition, as remand is required for the issuance of a statement of the case. When a notice of disagreement has been filed, the RO must issue a statement of the case. Manlicon v. West, 12 Vet. App. 238, 240-41 (1999); see also Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995) (noting that the filing of a notice of disagreement initiates the appeal process and requires VA to issue a statement of the case). In a November 2009 rating decision, the RO denied the Veteran' claim to reopen the issue of entitlement to service connection for a right hip disorder, denied the Veteran's claim for entitlement to service connection for a right knee disorder, and denied the Veteran's claim for entitlement to an increased rating for a right ankle disorder. During his November 2009 hearing before the Board, the Veteran testified that he wished to appeal the RO's November 2009 decision with regard to those issues. The Board accepts the Veteran's November 2009 testimony before the Board as a notice of disagreement to the RO's November 2009 rating decision with regard to those issues. As the RO has not yet issued a statement of the case with regard to these issues, remand is required. II. Low Back Disorder and Vertigo With regard to the Veteran's claims for entitlement to service connection for a back disorder and entitlement to service connection for vertigo, the Board finds that remand is required for additional development. In disability compensation claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicates" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Under the circumstances of this case, the Board finds that the Veteran must be afforded a VA examination to determine whether there is any relationship between his current low back disorder and his military service. There is evidence of inservice complaints of low back pain and a currently diagnosed low back disorder. In addition, the Veteran has provided lay evidence that he has had low back symptomatology, on and off, since service discharge. Accordingly, a VA examination addressing the etiology of the Veteran's current low back disorder is warranted. In addition, the Veteran must be afforded a VA examination to determine whether there is any relationship between his current vertigo and his military service, to include inservice noise exposure. Although the Veteran's service treatment records do not reflect complaints of or treatment for vertigo or dizziness during service, the Veteran had noise exposure during service. In addition, there is evidence of current diagnoses of vertigo and Meniere's disease, and during his November 2009 hearing before the Board, the Veteran testified that he has had symptoms of dizziness on and off since service discharge. Thus, the Board finds that the low threshold described in McLendon has been reached. Accordingly, a VA examination addressing the etiology of the Veteran's vertigo is warranted. Accordingly, the case is remanded for the following actions: 1. The RO must provide the Veteran with an appropriate VA examination to determine the etiology of any current low back disorder found. The claims file must be provided to and reviewed by the examiner. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. Following a review of the service and post-service medical evidence, the examiner must provide an opinion as to whether the Veteran's current low back disorder is related to his military service. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The report prepared must be typed. 2. The RO must also afford the Veteran the appropriate VA examination to determine the etiology of any current vertigo or Meniere's disease found. The claims file must be provided to and reviewed by the examiner. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. Following a review of the service and post-service medical records, the examiner must provide an opinion as to whether the Veteran's current vertigo or Meniere's disease was caused by or aggravated by his military service, to include inservice noise exposure. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The report prepared must be typed. 3. The RO must notify the Veteran that it is his responsibility to report for the scheduled examinations and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2009). In the event that the Veteran does not report for the scheduled examinations, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. The examination reports must be reviewed to ensure that they are in complete compliance with the directives of this remand. If either of the reports are deficient in any manner, the RO must implement corrective procedures. 5. Appropriate action, including review of the evidence of record, the issuance of a statement of the case, and the notification of the Veteran's appellate rights on the issues of whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a right hip disorder, entitlement to service connection for a right knee disorder, and entitlement to an increased rating for a right ankle disorder, currently evaluated as 20 percent disabling, based on a November 2009 rating decision, is necessary. 38 C.F.R. § 19.26 (2009). The Veteran is reminded that, to vest the Board with jurisdiction over these issues, a timely substantive appeal to the November 2009 rating decision denying these claims must be filed. If the Veteran perfects an appeal as to these issues, the same should be returned to the Board for appellate review. 6. After completing the above actions, 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 must be readjudicated. If any of the claims remain denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs