Citation Nr: 1303751 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 10-11 124 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for a low back disability. 2. Entitlement to service connection for a low back disability. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for a right ankle disability. 5. Entitlement to a compensable rating for a service-connected right little finger disability. 6. Entitlement to a compensable rating for a service-connected left ring finger disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1990 to March 1994. This matter comes before the Board of Veterans' Appeals (Board) from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. In September 2010, the Veteran testified before the undersigned Veterans Law Judge in a Board videoconference hearing. A transcript of that hearing has been associated with the claims file. Following the hearing, the Veteran submitted additional written statements accompanied by a waiver of RO consideration. Nevertheless, in view of the action taken below, initial consideration of that evidence by the RO should be undertaken. The Board notes that claims for service connection for a psychiatric disorder, a left ankle disability, and flat feet have been raised by the record. Specifically, the Veteran asserted in an April 2010 statement that he suffers from depression secondary to his service-connected right little finger and left ring finger disabilities. Additionally, the Veteran submitted an October 2011 private physician's statement indicating that the Veteran currently suffers from a psychiatric disorder, bilateral flat feet, and a left ankle disorder that are likely related to service. A review of the Veteran's virtual VA file shows that those claims were adjudicated by the RO in an August 2012 rating decision, and that the Veteran was sent notice of the RO's decision the same month. There is no indication in the claims file or the virtual VA file that Veteran has yet filed an appeal of the August 2012 rating decision, nor has the rating decision become final. As such, the Board does not have jurisdiction over those claims. As a final preliminary matter, the Board acknowledges that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record. To date, the Veteran has not reported that he is unable to work on account of his service-connected disabilities. On the contrary, available evidence shows that the Veteran is currently working. As the Veteran does not allege that he is unemployable on account of his service-connected disabilities currently before the Board, the Board finds that a claim for a TDIU has not been raised by the record. The issues of entitlement to service connection for a right ankle disability and increased ratings for service-connected right little finger and left ring finger disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. In an August 1994 rating action, the RO denied service connection for a low back disability. The Veteran did not file a timely appeal. 2. Evidence added to the record since the August 1994 rating action relates to unestablished facts necessary to substantiate the service connection claim for a low back disability and raises the possibility of substantiating the claim. 3. Resolving all reasonable doubt in the Veteran's favor, a low back disability had its onset in service. 4. Resolving all reasonable doubt in the Veteran's favor, tinnitus had its onset in service. CONCLUSIONS OF LAW 1. The August 1994 rating decision that denied a service connection claim for a low back disability is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d) (2012). 2. Evidence added to the record since the August 1994 rating action, denying service connection for a low back disability, is new and material and the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. Service connection is warranted for a low back disability. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 4. Service connection is warranted for tinnitus. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board reopens the service connection claim for a low back disability, and grants service connection for a low back disability and tinnitus. This represents a complete grant of the benefits sought on appeal; thus, a discussion of VA's duty to notify and assist is unnecessary. New and Material Evidence Initially, the Board notes that the RO appears to have reopened the Veteran's low back disability service connection claim in the March 2010 statement of the case. Nevertheless, the preliminary question of whether the previously denied claim should be reopened is a jurisdictional matter that must be addressed by the Board before considering the underlying merits of the claims. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Consequently the Board must address the threshold question of whether new and material evidence has been received since the last final determination. In doing so, Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). The RO denied the Veteran's initial service connection claim for a low back disability in August 1994. At that time, the evidence of record included the service treatment records and a May 1994 VA examination. However, the RO concluded that, although the Veteran was seen for back pain in service, the evidence failed to demonstrate that he had chronic residuals of a low back disability. The Veteran was notified of the determination and his appellate rights; however, he did not appeal the determination, and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision. See 38 C.F.R. § 3.156(b) (2012); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the August 1994 rating decision became final based on the evidence then of record. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.1105 (2012). The August 1994 rating decision is the last final decision of record. The claim decided therein is not subject to revision on the same factual basis. 38 U.S.C.A. § 7104. In order to reopen a claim, the Veteran must present or secure new and material evidence with respect to that claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Numerous pieces of evidence have been added to the record since the August 1994 RO rating action, including VA and private treatment records, an October 2011 statement of private physician Craig N. Bash, M.D., M.B.A., and additional written statements and oral testimony from the Veteran. The Veteran testified during his September 2010 videoconference hearing that he currently experiences some low back pain. Significantly, the October 2011 private statement notes that physical examination of the Veteran's lumbar spine revealed pain and limitation of motion and indicates that the Veteran likely has advanced for age degenerative spinal arthritis with radicular syndrome, providing credible evidence of a possible current low back disability. See Duran v. Brown, 7 Vet. App. 216, 220 (1994). Further, Dr. Bash opined that there is at least a 50 percent probability that the Veteran's current low back problems are due to his military experiences. Ultimately, the evidence associated with the claims folder since the August 1994 rating action considered in light of VA's duty to assist sufficiently raises a reasonable possibility of substantiating the previously denied service connection claim for a low back disability. Thus, new and material evidence, within the meaning of 38 C.F.R. § 3.156(a), has been received and the matter is reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Low Back As an initial matter, the Board notes that the evidence of record supports the Veteran has a low back disability. Specifically, an October 2011 private medical report documents the Veteran's current complaints of low back pain with radiation to the lower extremities, and physical examination at that time revealed limited motion of the lumbar spine. Based on the foregoing, the private physician opined that the Veteran likely has advanced for age degenerative spinal arthritis with radicular syndrome. Thus, the determinative issue is whether any low back disability is related to military service. Service treatment records show treatment for low back pain in October 1990 following a lifting injury. Thereafter, the Veteran continued to complain of chronic low back pain, and diagnoses were made of muscle strain and mechanical low back pain. Significantly, during his February 1994 separation examination, the Veteran complained of recurrent back pain due to a lifting injury in service, and clinical evaluation at that time revealed right paraspinal muscle pain on deep palpation. Preliminarily, the Board finds that the Veteran was without any low back disorder, or any similar physical defect, at the time of his January 1990 enlistment. The Veteran's enlistment examination noted no clinical findings indicative of a low back abnormality and he is entitled to the presumption of soundness. The Board acknowledges the Veteran's statements made during treatment in service indicating that he experienced low back symptoms prior to service, but the Veteran statements and a bare transcription of his account of pre-service symptoms/conditions is not sufficient evidence to rebut the presumption of soundness. See Miller v. West, 11 Vet. App. 345, 348 (1998); see also Crowe v. Brown, 7 Vet. App. 238 (1994). As such, the Board finds that no low back disorder was noted at the time of the Veteran's enlistment and there is insufficient evidence to rebut the presumption of soundness, as required under 38 U.S.C.A. § 1111; therefore, the analysis to follow will proceed accordingly. See 38 C.F.R. § 3.304(b)(1); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Crowe, 7 Vet. App. at 245. Thereafter, a May 1994 VA spine examination documents the Veteran's account of a low back injury sustained in service. The Veteran reported that since that injury, he had experienced low back pain on and off. Following a physical examination of the Veteran, the examiner diagnosed a lower back strain. In an October 2011 statement, a private physician details the Veteran's low back symptoms and his account of a low back injury in service. The private physician noted that service treatment records show a low back injury in service and treatment for low back symptoms. He further noted that a March 1993 x-ray of the Veteran's spine revealed Schmorl's nodes, which he opined were traumatic in origin, as the Veteran did not have another more likely cause for his Schmorl's nodes at age 21. Then, based on the Veteran's current symptoms, his service treatment records, and his reported history, the physician opined that, to at least the 50 percent level of probability, the Veteran's current low back problems are due to his experiences and trauma in service. In support of his conclusion, the physician cited to medical principles supporting that lifting injuries precipitate and accelerate the onset of the degenerative process of the spine, and repetitive loads early in life are known to cause advanced-for-age degenerative disc disease. The Veteran has provided a competent and credible account of low back symptoms, to include onset during and continuity since separation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). His account of in- and post-service symptoms, to include at his September 2010 videoconference Board hearing, has remained consistent. Moreover, his statements are corroborated by the service treatment records and the May 1994 VA examination report, which document complaints of low back symptoms both in service and shortly thereafter. Taken together, these factors make the Veteran's statements as to these matters competent, credible and highly probative. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005) (it is the Board's responsibility, as fact-finder, to determine the credibility and weight to be given to the evidence). The Board recognizes that the Veteran testified during his September 2010 Board hearing that he is not receiving treatment for his low back, and that he has not identified any source of treatment for his low back since service, other than taking Aleve. Nonetheless, a May 1994 VA examination diagnosed the Veteran with a low back strain within one year of separation from service, and the Veteran has provided a competent and credible account of low back symptoms since separation. See Jandreau and Buchanan. The absence of medical evidence documenting relevant treatment is a factor properly considered when considering a claim of this nature. Here, however, resolving all reasonable doubt in his favor, the absence of such evidence of low back treatment does not provide probative evidence against the Veteran's competent and credible account of having low back symptoms continuously since separation. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (VA must consider "all of the evidence including the availability of medical records, the nature and course of the disease or disability, the amount of time that elapsed since military service, and any other relevant fact," when considering the probative value to assign evidence of a prolonged period without medical complaint.). In any service connection claim, competent medical evidence and opinions are highly probative in establishing service connection. Here, the most probative medical evidence of record tends to weigh in favor of the claim. The October 2011 private physician's opinion relating the Veteran's current low back disability to military service, clearly reflects (I) acceptance of the Veteran's competent and credible account of symptomatology, i.e., it was based on an accurate history; (II) consideration and analysis of pertinent medical evidence; and (III) the physician's medical expertise. Thus, the Board finds the opinion to have significant probative value in favor of the claim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Moreover, there is no contrary opinion of record. In sum, the evidence confirms the Veteran has been diagnosed with a current low back disability and he has provided a competent and credible account of low back symptomatology. Further, the most probative medical evidence links the currently diagnosed low back disability to service. Thus, service connection is warranted. Tinnitus The Veteran seeks service connection for tinnitus, maintaining that in-service noise exposure from his military occupational specialty duties as a motor operator for an artillery unit caused tinnitus, and that his condition has persisted since that time. In written statements, the Veteran has also asserted significant noise exposure in service from artillery fire. At the outset, the Board notes that, given a lay person is competent to identify the medical condition, the Veteran has provided a competent and credible diagnosis of tinnitus. See Davidson, 581 F.3d at 1316; see also McClain v. Nicholson, 21 Vet. App. 319 (2007). Thus, the ultimate disposition of this appeal rests upon whether the Veteran's tinnitus is directly related to service. The Veteran's DD Form 214 shows his military occupational specialty was motor vehicle operator. It also shows that the Veteran completed four weeks of Marine infantry school. His January 1990 enlistment examination is negative for complaints of tinnitus and shows bilateral hearing acuity within normal limits. Similarly, subsequent service treatment records do not document specific complaints of or treatment for tinnitus, though in November 1992, the Veteran was issued ear plugs, supporting that he was exposed to significant noise during service. The Board observes that during his February 1994 separation examination bilateral hearing acuity was within normal limits and the Veteran denied hearing loss. However, audiometric testing revealed some degree of hearing loss in the left ear when compared to the audiometric findings noted during the January 1990 enlistment examination. Those records, along with the Veteran's separation form, show that he likely had noise exposure in service. During his September 2010 Board hearing, the Veteran testified that, during his service as a motor operator with an artillery unit, he was exposed to significant noise without the use of ear protection. He further testified that his ears began ringing in service and that the ringing had continued to the present day. He described the ringing in his ears as constant. Post service VA treatment records show that the Veteran underwent a May 2011 audiological consultation during which he reported high pitched buzzing sounds in his ears that had been present for years and had recently become more intense. The Veteran denied difficulty with hearing. He reported a positive history of military noise exposure, as well as a post-service occupational history of noise exposure working as a locomotive engineer. Audiometric testing revealed bilateral hearing acuity within normal limits. The VA examiner determined the Veteran to have tinnitus consistent with cochlear pathology. A subsequent August 2011 VA treatment note confirms that the Veteran suffers from tinnitus. In support of his claim, the Veteran submitted a private October 2011 opinion, which notes the Veteran's complaint of ringing in the ears. The opinion further states that the Veteran experienced increasing high frequency losses during service and notes that the Veteran was issued ear plugs in November 1992 during service. The physician then opined that, considering sound medical principle, the Veteran's current tinnitus problems are to at least a 50 percent level of probability due to his experiences/trauma during his military service. The physician found that the Veteran's records do not contain a more likely etiology for the Veteran's tinnitus and his advanced for age hearing loss. The Veteran provides a competent and credible account of in-service acoustic trauma and in- and post-service tinnitus symptomatology, including onset and continuity since separation. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Service treatment records tend to confirm his account of likely in-service acoustic trauma. Indeed, the Veteran served with a motor pool, attended infantry school, and was issued hearing plugs in service. Moreover, post-service treatment records document a consistent account of long-standing tinnitus, albeit with a recent increase in intensity. Thus, while he has post-service employment noise exposure, the Board finds the Veteran's account of in-service military noise exposure and relevant tinnitus symptomatology, including continuity since separation, to be competent credible and highly probative. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); see also Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (VA must consider lay evidence and give it the weight it concludes is appropriate). As for the private October 2011 positive opinion, the Board observes that in determining the probative value to be assigned to a medical opinion, it must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In any service connection claim competent medical evidence and opinions are highly probative in establishing the claim; however, in the present matter, there is no adequate medical opinion of record. The private October 2011 opinion does not reflect adequate or, indeed, any consideration of the Veteran's account of post-service noise exposure as a locomotive engineer. Further, the private physician states that the Veteran has advanced for age hearing loss, which is not supported by any of the audiometric findings of record, which show bilateral hearing acuity completely within normal limits. Nor is that conclusion supported by the Veteran's own statements of record in which he denies difficulty hearing. What is more, the examiner's statement that the Veteran had "increasing high frequency losses in service from 1/90 [entry] to 10/90 and 90 to 94 [separation]" is not supported by the Veteran's service treatment records. Thus, the October 2011 private opinion is premised upon inadequate or incomplete medical reasoning and analysis, limiting the probative value of the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In the present circumstance, the absence of an adequate positive medical opinion is not fatal to the Veteran's claim because lay evidence may service as basis to establish the claim. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007); Savage v. Gober, 10 Vet. App. 488, 496 (1997). In this regard, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, supra. Moreover, as noted above, pursuant to 38 C.F.R. § 3.303(b), the second and third elements of service connection may be established by demonstrating a continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. at 307. In sum, the Board finds the most probative evidence shows that the Veteran sustained in-service acoustic trauma and experienced tinnitus symptoms in service. Further, the competent evidence confirms his diagnosis of tinnitus. Significantly, his account, as reported by the Veteran during his September 2010 hearing and in a September 2011 written statement, of experiencing relevant symptomatology continuously since separation is competent, credible and highly probative, because (I) service treatment records tend to support his account of ongoing acoustic trauma and some decreased audiological acuity in service; (II) he has provided a generally consistent account of post-service tinnitus symptoms; and (III) the other evidence of record by and large is consistent with his account as to these matters. See Davidson, 581 F.3d at 1316. Accordingly, the Board finds the evidence of record, medical and lay, to support the Veteran's later diagnosis tinnitus. See Barr. Thus, service connection is warranted for tinnitus and the appeal is granted. ORDER The service connection claim for a low back disability is reopened. Service connection for a low back disability is granted. Service connection for tinnitus is granted. REMAND The Board finds that remand is necessary with respect to the Veteran's claim for service connection for a right ankle disability. Service treatment records document an in-service right ankle injury. Those records show that the Veteran was treated in December 1992 for an inversion injury to the right ankle, which was diagnosed as a second degree sprain. Additionally, competent medical evidence suggests that the Veteran may have a current right ankle disability that is related to his right ankle injury in service. Specifically, the October 2011 private physician's statement notes that physical examination of the bilateral ankles revealed crepitus and pain on motion, and further documents the Veteran's report that his right ankle rolls when he walks on uneven terrain. That physician also opined that there is a 50 percent probability that the Veteran's current right ankle problems are due to his trauma during military service, though the physician offered no diagnosis for the Veteran's right ankle problems. The Veteran has not yet been afforded a VA examination to determine the nature and likely etiology of any right ankle disability, and therefore, remand is warranted. Though the October 2011 private physician opined that the Veteran's "right ankle problems" are likely related to his right ankle injury in service, the physician did not diagnose any right ankle disability and, therefore, that statement cannot serve as a basis on which to establish service connection. Further, though the Veteran contends that he has a current right ankle disability that is related to his in-service injury, he is not competent to offer an opinion as to etiology. See, e.g., Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Next, the Veteran seeks increased ratings for his service-connected right and left finger disabilities. The Board notes that the Veteran last underwent a VA examination for his bilateral finger disabilities in August 2009. Since that time, the Veteran contends that his right and left finger disabilities have worsened. Specifically, the Veteran testified during his September 2010 videoconference hearing that both his right little finger and left ring finger disabilities had worsened since his last VA examination, indicating that he sometimes wears a brace on his left hand for left ring finger stability, and experiences a lot of tingling and a little bit of numbness in his right little finger. Given the Veteran's statements regarding his disabilities and their deterioration, and the length of time that has passed since his last examination, VA is required to provide him a contemporaneous VA examination to assess the current nature, extent and severity of his right little finger and left ring finger disabilities. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Thus, the Board has no discretion and must remand these claims. Additionally, the Board notes that subsequent to the most recent RO adjudication of the Veteran's increased rating claims in the March 2010 statement of the case, the United States Court of Appeals for Veterans Claims (Court) decided the case of Burton v. Shinseki, 25 Vet. App. 1 (2011). In that case, the Court held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, provide that a claimant is entitled to at least the minimum compensable rating for the joint, and are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Id. As such, on remand, the RO must consider the application of Burton in readjudicating the Veteran's increased rating claims. Further, it appears that there are outstanding private treatment records pertinent to the Veteran's claims on appeal. During his September 2010 hearing, the Veteran testified that he had an appointment with his private physician to receive additional treatment for his right and left finger disabilities the month following his hearing. It does not appear that the Veteran has sent any other records from that treatment, nor does it appear that he has provided VA with a release to obtain those records on his behalf. On remand, the Veteran should thus be provided with an opportunity to allow VA to obtain these records or for him to provide these records directly to VA. Next, it appears that there may be a temporary file containing records that have yet not been associated with the claims file or the Veteran's virtual VA file. An August 2012 rating decision issued by the RO references evidence not currently of record, including August 2012 VA examinations, a December 2011 statement of the Veteran, a statement from a private physician received in December 2011, and various written statements from the Veteran's service representative. To ensure a complete record on which to adjudicate the Veteran's remaining claims on appeal, those outstanding records should be obtained and associated with the Veteran's claims file, either physically or electronically. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of the nature, extent, and severity of his right little finger and left ring finger disabilities, including any impact this condition has on his ability to work, and any in-service and post-service right ankle symptoms. He should be provided an appropriate amount of time to submit this lay evidence. 2. Locate and associate with the claims file any temporary file containing the evidence referenced in the August 2012 rating decision, to include August 2012 VA examination reports, written statements from the Veteran and his service representative, and a statement of Dr. Bash received in December 2011. 3. Associate with the claims file, either electronically or physically, all pertinent, outstanding VA treatment records. 4. With any necessary assistance from the Veteran, attempt to obtain records of the Veteran's treatment from Dr. Kevin Tomany dated after January 2009. The Veteran should be informed that he may provide these records himself, or that he may provide VA with a release to obtain these records on his behalf. Should the Veteran provide VA with a release to obtain these records, then at least two attempts to obtain these records should be undertaken unless it is made evident by the first request that a second request would be futile in obtaining such records, and all efforts to obtain these records should be documented in his claims folder. 5. After the above ordered development has been completed, the Veteran should undergo a VA examination to determine the current nature and severity of his service-connected right little finger and left ring finger disabilities. The examiner should review the Veteran's claims file and should indicate in the report provided that this review was accomplished. All indicated tests should be conducted, including x-ray, and all symptoms and residuals associated with the Veteran's service-connected right little finger and left ring finger disabilities should be described in detail. Specifically, the examiner should conduct a thorough examination of the Veteran's right little finger and left ring finger and identify all impairment found to be present. The examiner should report all current manifestations of the Veteran's right little finger and left ring finger disabilities, to include any symptomatology in the right and left hands, both musculoskeletal and neurological manifestations, as appropriate. The examiner should state whether there is any arthritis in the right little finger or left ring finger. The examiner should also indicate the extent to which any right little finger or left ring finger symptomatology, including but not limited to pain or limitation of motion, affects the function of any other digits of the right or left hand as appropriate, or the right or left hand as a whole. The rationale for all opinions, with citation to relevant medical findings or medical authority, must be set forth in a legible report. 6. After obtaining any pertinent, outstanding records, schedule the Veteran for an appropriate VA examination to determine the current nature, onset, and etiology of his claimed right ankle disability. The claims folder should be made available to, and reviewed by the examiner, with such review noted in the provided examination report. The examiner should record the full history of the condition, including the Veteran's account of symptomatology. All necessary testing should be completed with the relevant findings reported in detail. The examiner should note all right ankle pathology found to be present, if any, and state whether the Veteran's symptoms are attributable to a known clinical diagnosis. With regard to any diagnosed condition, the examiner should state the likelihood that the condition: (i) had its onset in service or within one year of separation; and, (ii) is otherwise related to the Veteran's period of military service, including to a right ankle sprain therein. The examination report should reflect the examiner's consideration and analysis of both the medical and lay evidence of record, including the Veteran's account of symptomatology and any other evidence deemed pertinent. All provided opinions should be supported by a clearly stated rationale. An examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. See Jones v. Shinseki, 23 Vet. App. 382 (2010). As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. 7. Then, readjudicate the appeal. In readjudicating the increased rating claims, the RO must consider application of 38 C.F.R. § 4.59 (2012) and Burton v. Shinseki, 25 Vet. App. 1 (2011). If the benefits sought on appeal are not granted in full, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC) that considers all evidence received since the March 2010 statement of the case. An appropriate period of time should be allowed for response The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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 Supp. 2012). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs