Citation Nr: 1306358 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 10-19 338 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a previously-denied claim of service connection for bronchitis. 2. Whether new and material evidence has been received to reopen a previously-denied claim of service connection for bilateral hearing loss. 3. Whether new and material evidence has been received to reopen a previously-denied claim of service connection for a low back disability. 4. Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD). 5. Entitlement to service connection for tinnitus. 6. Entitlement to a compensable rating for the service-connected disability of the right hand. 7. Entitlement to a compensable rating for the service-connected epididymitis of the left testicle. 8. Entitlement to a 10 percent rating based on multiple noncompensable service-connected disabilities. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from May 1990 to February 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The RO specifically denied service connection for PTSD. However, claims for service connection for PTSD encompass claims for service connection for all psychiatric disabilities; see Clemons v. Shinseki, 23 Vet. App. 1 (2009). Because the Veteran has been diagnosed with acquired psychiatric diagnoses other than PTSD the Board has recharacterized the issue to comport with the evidence of record. In his Substantive Appeal the Veteran requested a videoconference hearing before the Board. A videoconference hearing was duly scheduled in January 2013, but the Veteran did not appear. He has not shown good cause for failing to appear or requested the hearing be rescheduled. His request for a hearing before the Board is accordingly deemed to be withdrawn. See 38 C.F.R. § 20.704(d) (2012). FINDINGS OF FACT 1. A rating decision in May 1994 denied service connection for bronchitis and hearing loss; the Veteran was notified of the denial but did not perfect an appeal or submit material evidence within the appeal period. 2. Evidence received since May 1994 is cumulative or redundant of the evidence previously of record and does not relate to an unestablished fact necessary to substantiate the claims for service connection for bronchitis or hearing loss. 3. A decision by the Board in July 2005 denied service connection for a low back disorder; the Veteran did not appeal or submit material evidence within the appeal period. 4. Evidence received since July 2005 is cumulative or redundant of the evidence previously of record and does not relate to an unestablished fact necessary to substantiate the claim for service connection for a low back disability. 5. The Veteran does not have diagnosed PTSD that is due to a verified or verifiable in-service stressor, and the evidence is against a finding that any other diagnosed acquired psychiatric disorder was incurred in or aggravated by service. 6. The Veteran does not have diagnosed tinnitus. 7. The Veteran's right hand disability is manifested by pain and loss of function with a resultant disability picture that approximates amputation of the little finger without metacarpal resection. 8. The Veteran's epididymitis of the left testicle is manifested by pain requiring intermittent, but not continuous, intensive management. 9. The Board having granted compensable ratings for the right hand and epididymitis disabilities, the Veteran is not eligible for a 10 percent rating based on multiple noncompensable service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria to reopen a previously-denied claim of service connection for bronchitis are not met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(c) (2012). 2. The criteria to reopen a previously-denied claim of service connection for bilateral hearing loss are not met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(c) (2012). 3. The criteria to reopen a previously-denied claim of service connection for a low back disability are not met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(c) (2012). 4. The criteria for service connection for an acquired psychiatric disorder are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.303, 3.304 (2012). 5. The criteria for service connection for tinnitus are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.303, 3.304 (2012). 6. The criteria for a rating of 10 percent, but not more, for the service-connected disability of the right hand are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.10, 4.14, 4.45, 4.71a, Diagnostic Codes 5227, 5156 (2012). 7. The criteria for a rating of 10 percent, but not more, for the service-connected epididymitis of the left testicle are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.10, 4.14, 4.115b, Diagnostic Code 7525 (2012). 8. The criteria for a 10 percent rating based on multiple noncompensable service-connected disabilities are not met. 38 C.F.R. § 3.324 (2012) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Complete notice was provided to the Veteran in a letter dated in March 2009. The letter advised the Veteran of the elements required to establish entitlement to service connection, including the disability-rating and effective-date elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The letter also advised the Veteran of elements required to reopen a previously-denied claim and the specific reasons why his previous claims of service connection for bronchitis, hearing loss and low back pain had been denied. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The same letter advised the Veteran of the elements required to establish entitlement to increased rating, including the impact of the disabilities on daily life and occupational functioning. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The letter also advised the Veteran of the criteria to show entitlement to a 10 percent rating for multiple noncompensable service-connected disabilities. The Veteran had ample opportunity to respond prior to the September 2009 rating decision on appeal. In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009 (reversing prior cases law imposing a presumption of prejudice on any notice deficiency and clarifying that the burden of showing harmful or prejudicial error normally falls on the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records and service personnel records, VA medical treatment records, and private treatment records identified by the Veteran have been obtained. There is no indication of record that any additional evidence relevant to the issues decided is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has been afforded appropriate VA medical examinations, and he was scheduled for a hearing before the Board at his request but he failed without good cause to appear. As there is no indication that any failure on the part of VA to provide any additional notice or assistance reasonably affects the outcome of this case, any such failure is harmless. Sanders, 129 S.Ct. 1696. New and Material Evidence Applicable Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). In order to prevail on the issue of service connection there must generally be medical evidence of a current disability; medical evidence, or in some cases lay evidence, of in-service occurrence or aggravation of a disease or injury; and, evidence of a nexus between an in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); Pond v. West, 12 Vet. App. 341, 346 (1999). Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The language of 38 C.F.R. § 3.156(a) creates a low threshold, and the phrase "raises a reasonable possibility of substantiating the claim" is "enabling rather than precluding reopening." The regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to an element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Evidence and Analysis Bronchitis and hearing loss A rating decision in May 1994 denied service connection for a lung condition and for bilateral hearing loss. The Veteran filed a timely Notice of Disagreement (NOD) in November 1994, and the RO issued a Statement of the Case (SOC) in June 1995. The Veteran attempted to file a substantive appeal in October 1995, but the RO notified the Veteran that his attempted substantive appeal had been filed outside the appeal period and was untimely. The May 1994 rating decision is now final. 38 C.F.R. § 20.302. The May 1994 rating decision specifically denied service connection for a lung condition because the bronchitis that was documented in service was shown to be a temporary condition that resolved without residuals, with no permanent residual disability shown on examination. Service connection for hearing loss was denied because the Veteran did not have a hearing loss on examination that was considered disabling under VA standards. The evidence of record at the time of the May 1994 rating decision consisted of the following: (1) service treatment records; (2) a VA audiological evaluation in April 1994 showing normal hearing; and, (3) a VA general medical examination in April 1994 showing no current pulmonary symptoms and lungs clinically normal. There has been no evidence received since May 1994 regarding hearing loss. Accordingly, reopening of the claim for service connection for hearing loss is not warranted. Evidence received since May 1994 that is relevant to bronchitis consists of the following: (1) a VA primary care clinic (PCC) physical examination in June 2007 that essentially showed normal sinuses and lungs; (2) a VA mental health clinic evaluation in October 2007 in which the Veteran denied respiratory problems; and, (3) a VA respiratory diseases examination report in October 2011 that provided a medical opinion that the Veteran did not have current residuals of his bronchitis in service (the examiner stated the Veteran had a longstanding history and diagnosis of tobacco use disorder but no diagnosis of anything pertaining to a respiratory disorder or residual respiratory stemming from treatment for bronchitis in service). The new evidence received since May 1994 is not "material" in that it does not address the specific reason the claim was previously denied (i.e., that Veteran had no current residuals of the in-service bronchitis). Further, the new evidence does not address any previously-unproven element of the claim, such as a current diagnosed chronic respiratory disorder. Accordingly, reopening of the claim for service connection for bronchitis is not warranted. As the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen these finally disallowed claims, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Low back disability The rating decision in May 1994 also denied service connection for low back pain. Thereafter, the RO issued rating decisions in January 1999, February 2000 and March 2003 that declined to reopen the claim. In July 2005 the Board determined that new and material evidence had been received in regard to that issue since February 2000, and thereupon reopened the claim and denied service connection on the merits. The Veteran did not appeal the Board's decision or submit material evidence within the appeal period. The Board's July 2005 decision is now final. 38 C.F.R. § 20.1100. The Board's decision in July 2005 specifically denied service connection for a low back disability because the preponderance of the objective and competent medical evidence of record was against a finding that the Veteran had a currently-diagnosed low back disability related to his period of active service or to a service-connected disability, and any complaints of low back pain were not shown to be related to the Veteran's active service. The evidence of record at the time of the Board's July 2005 decision consisted of the following: (1) service treatment records; (2) an April 1994 VA general medical examination that was essentially normal; (3) an April 1994 VA examination of the spine diagnosing history of low back pain; (4) a VA X-ray in April 1994 showing dextroscoliosis with normal alignment and normal disc spaces; (5) VA X-rays in November 1994 showing normal thoracic and lumbar spine; (6) a VA X-ray in July 1996 showing normal thoracic spine; (7) VA treatment notes in August-September 1996 showing an impression of mid-thoracic pain of undetermined cause; (8) a September 1996 VA magnetic resonance imaging (MRI) report showing small anterior osteophytes but otherwise normal thoracic spine; (9) a VA treatment record in October 1996 documenting complaint of chronic mid-thoracic back pain; (10) a VA clinical examination in July 1997 showing impression of normal physical examination; (11) private treatment records from Dr. Terry Wilkinson dating from November 1995 to August 1997 showing treatment for back pain; (12) private X-ray of the thoracic spine in May 1997 showing negative examination; (13) treatment records from Dr. Duane Kirkdorffer dating from May-December 1997 showing treatment for a work-related thoracic strain incurred in May 1997; (14) an MRI report in June 1997 showing normal thoracic spine; (15) a September 1997 orthopedic evaluation by Dr. William Blankenship essentially showing no orthopedic abnormality and recommending referral to a rheumatologist for some underlying medical cause for the Veteran's complaints; (16) a July 1999 VA treatment record showing Veteran's complaint of chronic thoracic spine pain since 1992; (17) a VA pain clinic treatment note in May 2001 showing assessment of thoracic spine pain; (18) a September 2001 VA ambulatory care treatment note showing an impression of chronic low back pain (CLBP); (19) a November 2001 VA treatment note showing referral to physical therapy (PT) clinic; (20) a December 2001 VA genitourinary examination in which the examiner noted the Veteran appeared to have an ongoing back problem but that his problem was not related to the service-connected epididymitis; (21) a July 2003 subjective appeal in which the Veteran asserted his epididymitis is the direct cause of his back disorder; (22) a February 2004 RO hearing in which the Veteran asserted his back pain began in Somalia due to a lifting injury; and, (23) a March 2003 Statement in Support of Claim (SISC) in which the Veteran asserted having been treated for back pain in Somalia. Evidence received since Board's July 2005 decision that is relevant to the claimed low back disability consists of the following: (1) a January 2007 X-ray of the thoracic spine performed for Dr. Wilkinson and showing an impression of normal examination of the thoracic spine; (2) a VA primary care clinic (PCC) physical examination in June 2007 that is silent in regard to any complaints relating to the spine; (3) a VA mental health clinic evaluation in October 2007 in which the Veteran reported history of musculoskeletal back pain and testicular pain radiating into the back; (4) a VA examination of the spine in October 2011 diagnosing lumbar myofascial pain syndrome and low back pain, with addendum opinion in February 2012 stating the current low back pain was not related to an accident in service. The new evidence received since May 1994 is not "material" in that it does not address the specific reason the claim was previously denied (i.e., that current back pain was not related to service) and does not address any previously-unproven element of the claim. The Veteran has raised no new arguments of service connection (chronicity of symptoms, etc.) that were not previously considered by the Board. Accordingly, reopening of the claim for service connection for a low back disability is not warranted. As the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen this finally disallowed claim, the benefit-of-the-doubt doctrine is not applicable. See Annoni, 5 Vet. App. 463, 467. Entitlement to Service Connection Applicable Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). In order to prevail on the issue of service connection there must generally be medical evidence of a current disability; medical evidence, or in some cases lay evidence, of in-service occurrence or aggravation of a disease or injury; and, medical evidence of a nexus between an in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); Pond v. West, 12 Vet. App. 341, 346 (1999). Service connection specifically for PTSD "requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms an in-service stressor; and credible supporting evidence that the in-service stressor occurred." 38 C.F.R. § 3.304(f). Effective July 13, 2010, VA amended its adjudication regulations governing service connection for PTSD by liberalizing the evidentiary standard for establishing the required in-service stressor if such stressor is related to fear of hostile military or terrorist activity. The present Veteran had not stated a stressor that is related to such activity, so the provisions of the amended 38 C.F.R. § 3.304(f)(3) do not apply. When there is a proximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Evidence and Analysis Acquired psychiatric disorder to include PTSD Service treatment records document that the Veteran had problems with alcohol abuse/dependence during service, but are silent in regard to any psychiatric treatment or complaints. The Veteran had a VA general medical examination in April 1994 that is silent in regard to any observed psychiatric abnormality and any subjective psychiatric symptoms. The Veteran presented to the VA clinic in July 1997 for routine health examination in support of his application to barber school. He denied any health concerns other than back pain, and the examination report is silent in regard to any observed psychiatric disorder. The Veteran was treated by a private psychologist in October 1997 as part of his therapy following a workplace-related back injury earlier that year. The Veteran participated in a coping skills group related to pain management. The psychologist's notes are silent in regard to any current comorbid psychiatric disorder. The file contains a VA mental health clinic (MHC) referral in September 2001 showing the Veteran's spouse reported periods of behavioral changes that caused her to be concerned. The provisional diagnosis was possible depression versus stress reaction. The Veteran had a VA genitourinary examination in June 2004 during which the Veteran told the examiner he had been referred for mental health care on a previous occasion but had not signed up because he was incarcerated. The Veteran stated his prior troubles with the law related to driving while intoxicated, which the Veteran stated he no longer did. In his instant claim, received in January 2009, the Veteran requested service connection for PTSD with chronic depression. The Veteran had a VA mental health consult in October 2009 in which his chief complaint was depression. He also reported that during service with the Seabees he experienced combat and witnessed accidental deaths. The clinician stated the Veteran met the diagnostic criteria for PTSD due to non-combat trauma (specifically, witnessing the accidental deaths of several persons during service); although the Veteran reported having been in combat he did not feel his life had been threatened. The clinician diagnosed PTSD, depressive disorder not otherwise specified (NOS), alcohol abuse and substance abuse. The Veteran asserted in his substantive appeal, received in May 2010, that he had been awarded a Combat Action Ribbon. The RO subsequently determined on review of the file that the Veteran actually had received a Fleet Marine Force Combat Operation Insignia, which demonstrates that the wearer was assigned to a unit that participated in combat but does not, in and of itself, demonstrate personal participation in combat. See Supplemental Statement of the Case dated in October 2012). A VA mental health outpatient treatment note in April 2011 shows the Veteran reported he still ruminated over military traumas. The clinician continued the impression of PTSD, depressive disorder NOS, alcohol abuse in remission and substance abuse/marijuana in remission. In November 2011 the RO sent a letter to the Veteran acknowledging that he had reported non-combat stressors, consisting of witnessing the deaths of several service members, to VA medical personnel. The letter asked the Veteran to provide additional information (names of the individuals, type of accident(s), place and date of the accident(s), etc.). The Veteran did not respond. The Veteran had a VA PTSD examination in September 2012. The examiner stated the Veteran did not have PTSD or any other psychiatric diagnosis under Axis I, but that the Veteran did have personality disorder traits under Axis II. The examiner asked the Veteran to describe what he had specifically observed during service that caused him to feel threatened, or had caused death/injury to someone else, but the Veteran provided only vague answers although he appeared to understand the question. The examiner stated the Veteran did not meet the DSM-IV criteria for diagnosis of PTSD. The examiner also stated the Veteran had presented with very vague reports regarding stressors in service, and without further information it was not known what specific stressors he witnessed or was exposed to. The Veteran presented with personality traits that caused major interference with people; he had no known language barriers, psychoses or dementia that would cause his lack of responsiveness to questions. Rather, it appeared that his personality was the reason he answered questions with such insignificant detail. Review of the evidence shows disagreement over whether the Veteran has a diagnosed psychiatric disorder. The VA clinicians have diagnosed PTSD and depressive disorder NOS, while the VA examiner stated the Veteran had no Axis I diagnosis. If a veteran has received a diagnosis of PTSD from a competent medical professional, VA must assume that the diagnosis was made in accordance with the appropriate psychiatric criteria in regard to the adequacy of the symptomatology and the sufficiency of the stressor. Cohen v. Brown, 10 Vet. App. 128, 153 (1997). VA can only reject such a diagnosis on a finding that the preponderance of the evidence is against (1) the PTSD diagnosis, (2) the occurrence of the in-service stressor, or (3) the connection of the current condition to the in-service stressor. The adequacy of a stressor, sufficiency of symptomatology, and diagnosis are all medical determinations. Cohen, 143-44. Just because a physician or other health care professional accepted the appellant's description of his active service experiences as credible and diagnosed the appellant as suffering from PTSD does not mean the Board is required to grant service connection for PTSD; see Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The VA clinician's diagnosis was clearly and specifically based on the Veteran's reported in-service trauma of witnessing non-combat accidental death or injury. Because this stressor has not been verified, and indeed cannot be verified based on the Veteran's vague statements, the VA clinician's resultant diagnosis is not probative. The evidence necessary to establish the occurrence of a recognizable stressor during service varies depending on whether the veteran "engaged in combat with the enemy." West v. Brown, 7 Vet. App. 70, 76 (1994). The Board is required to "make specific findings of fact as to whether or not the claimed stressor is related to such combat." Zarycki v. Brown, 6 Vet. App. 91, 97-98 (1993). Although the Veteran has variously asserted that he participated in combat, there is no indication of such combat in his service personnel records. A veteran's lay testimony, alone, is not sufficient to establish that he or she engaged in personal combat with the enemy; that factor must be established by objective, competent, and factual evidence of record. Gaines v. West, 11 Vet. App. 353 (1998). In any case, the VA clinician who diagnosed PTSD stated that the Veteran did not have PTSD resulting from combat but rather from noncombat-related stressor of witnessing one or more accidents. When the claimed stressor is not related to combat, the veteran's lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor. Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must contain service records or other corroborative evidence that substantiates the veteran's testimony or statements as to the occurrence of the claimed stressors. See Zarycki, 6 Vet. App. 91, 98. As the Veteran has not provided sufficient details to enable VA to attempt to verify his claimed stressor, it follows that a diagnosis of PTSD based on such stressor is not adequate to support service connection. The VA clinician also diagnosed depressive disorder NOS, but there is no indication that such diagnosis resulted from or was aggravated by service. The VA examiner diagnosed personality disorder traits under Axis II, but personality disorders are deemed to be congenital or developmental abnormalities and are not considered to be disabilities for the purposes of service connection. See 38 C.F.R. §§ 3.303(c), 4.9, 4.127; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). In sum, there is no diagnosis of PTSD shown to be due to an in-service stressor, and no evidence that any other acquired diagnosed psychiatric disorder was incurred in or aggravated by service. Accordingly, the criteria for service connection for an acquired psychiatric disorder are not met. The preponderance of the evidence is against the claim; there is no doubt to be resolved; and service connection for an acquired psychiatric disorder is not warranted. Tinnitus Service treatment records are silent in regard to complaint of tinnitus during service. The Veteran had a VA audiological evaluation in April 1994; he concurrently had a VA general medical examination. Neither shows current tinnitus or history of tinnitus. The Veteran presented to the VA clinic in July 1997 for routine health examination in support of his application to barber school. He denied any health concerns other than back pain, and the report is silent in regard to any complaint of tinnitus. "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran has not been diagnosed with tinnitus, so there is no medical evidence of a disability for which service connection can be considered. The Board recognizes that tinnitus is a subjective disorder that cannot be identified during a clinical examination. However, as tinnitus symptoms were not reported during VA audiological and general medical evaluations after discharge from service, and have not been cited in any medical treatment record during or after service, the Board must find that the first element of service connection - medical evidence of a disability - is not shown. Thus, the criteria for service connection are not met and the claim must be denied. The preponderance of the evidence is against the claim; there is no doubt to be resolved; and service connection for tinnitus is not warranted. Evaluation of Service-Connected Disabilities Applicable Laws and Regulations Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it might be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. This provision means that when the claimant has noncompensable limitation of motion, but has pain on motion, the minimum evaluation for limitation of motion for that joint should be assigned. Burton v. Shinseki, 25 Vet. App. 1 (2011). In all increased rating claims the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Evidence and Analysis Schedular evaluation of the right hand disability The Veteran's right hand disability has been rated under the criteria of 38 C.F.R. § 4.71a, Diagnostic Code 5227 (ankylosis of the ring or little finger). This diagnostic code provides for a noncompensable rating only. However, a Note to this Diagnostic Code states the evaluator should also consider whether evaluation as amputation is warranted and whether an additional evaluation is warranted for resulting limitation of motion of other digits or interference with the overall function of the hand. Amputation of the little finger (dominant or non-dominant hand) is rated as 10 percent without metacarpal resection at the proximal interphalangeal joint or proximal thereto; a rating of 20 percent is available for amputation with metacarpal resection (more than half the bone lost). See 38 C.F.R. § 4.71a, Diagnostic Code 5161 (amputation of the little finger). The Veteran had a VA examination of the right hand in May 2009. The Veteran complained of decreased strength and coordination in his right (dominant) hand and described getting the "shakes." He complained of flare-ups with pain every 3-4 months. Physical examination showed decreased range of motion (ROM) of the right little finger compared to the left little finger; the Veteran complained of pain with motion of both the right (service-connected) and left (nonservice-connected) little fingers. Both little fingers showed increased pain, fatigue, weakness and lack of endurance following repetitive motion. Strength (pushing, pulling and twisting) was normal for the left hand but abnormal for the right hand due to pain with movement and the Veteran's attempt to protect the little finger and the top of the hand where a knot was located. Dexterity (twisting, probing, writing, touching and expression) was also normal for the left hand but abnormal for the right hand. X-ray of the right hand showed a healing fifth metacarpal boxer's fracture with no acute fracture, no significant degenerative disease and no pathologic calcification. The examiner diagnosed fractured distal fifth metacarpal bone of the right hand with slight misalignment preventing adduction of the fifth finger. In regard to functional impairment, the examiner stated the Veteran was able to perform activities of daily living (ADLs) but had functional limitations due to use of the right hand that had caused the Veteran to lose jobs; the Veteran was now an independent barber and unable to work full-time. The Veteran's VA treatment records are silent in regard to complaints regarding his right hand. The Veteran has not suggested, and the evidence of record does not show, that his disability has increased in severity since the May 2009 examination. The Board finds that the Veteran's disability causes impairment of function of the hand to a degree that rating under the criteria for amputation is warranted. The Veteran asserts, and the VA examiner documented, that the Veteran's fractured little finger causes pain, weakness (grip strength), fatigue and lack of endurance in his dominant hand versus his non-dominant hand, which triggers consideration of Burton. While the disability impairs the function of the hand, it does not appear to limit the motion of any other fingers. Therefore, the disability picture more closely approximates amputation without metacarpal resection, and a rating of 10 percent is warranted under Diagnostic Code 5156. The Board has considered whether a higher 20 percent rating is warranted, but the VA examination provides detailed discussion of the degree to which the Veteran's right (dominant) hand is weaker than that of his left (non-dominant) hand. These clinical observations do not show a disability picture approximating amputation with metacarpal resection, with more than half the bone lost. Because the schedular criteria for a rating higher than 10 percent was not met at any distinct period during the course of the appeal, staged ratings are not warranted. Hart, 21 Vet. App. 505. The preponderance of the evidence is at least in equipoise, and doubt has been resolved in the Veteran's favor. An evaluation of 10 percent for the right hand disability, but not more, is warranted. Schedular evaluation of epididymitis of the left testicle The Veteran's epididymitis disability has been rated under the provisions of 38 C.F.R. § 4.115b, Diagnostic Code 7525 (chronic epididymo-orchitis). The Diagnostic Code directs that the disability be based on the criteria for a urinary tract infection, as follows. A rating of 10 percent is assigned for long-term therapy, 1-2 hospitalizations per year and/or requiring intermittent intensive management. A rating of 30 percent is assigned for recurrent symptomatic infection requiring drainage/frequent hospitalization (more than 2 times per year) and/or requiring continuous intensive management. In his claim, received in January 2009, the Veteran asserted that his epididymitis of the left testicle affects his gainful employment. The Veteran presented to the VA PCC in May 2008 complaining of pain in the testicles, with a whitish discharge that had resolved with antibiotics. Clinical examination showed the testicles to be tender to palpation bilaterally. The clinical assessment was sexually transmitted disease (epididymo-orchitis) and epididymitis. The Veteran presented to the VA urology clinic in July 2008 for follow-up. He reported intermittent testicular pain. The left epididymis was tender to palpation. Ultrasound to the scrotum showed the left testicle to be smaller than the right, and the left epididymis was larger in diameter than the right; otherwise the structures were normal in appearance. The Veteran reported he had been treated with antibiotics and non-steroidal anti-inflammatory drugs (NSAIDs) in the past but intermittent pain persisted. The treatment plan was antibiotics, NSAIDs and alpha-blockers and return to clinic in six months for recheck. VA urology clinic notes in January 2009 again cited subjective complaints of intermittent testicular pain and clinical observations of left epididymis tender to palpation. The Veteran reported he had taken the alpha-blockers for awhile but had discontinued them because he felt they did not work. The Veteran complained the testicular pain was interfering with his quality of life. The clinician noted that the Veteran had refused alpha-blockers and would be referred to the pain clinic. The Veteran had a VA genitourinary examination in May 2009. The Veteran endorsed symptoms of tiredness, weakness, anorexia and weight loss. He endorsed recurrent urinary tract infections but denied history of catheters, dilations or drainage procedures. He endorsed daily medication for pain. Physical examination showed the testes to be very tender to palpation and there were hardened nodules (perhaps scars) on the epididymis. The examiner diagnosed chronic recurrent left epididymitis. The examiner noted the Veteran was able to perform ADLs and characterized the disability as "moderate. A VA preventive medicine clinic note in August 2009 shows the Veteran characterized his testicular pain as 10/10 in severity, increased by standing or walking and relieved by medication and by repositioning. He stated the pain was constant and that it affected his sleep, physical activity, walking, personal relationships and work productivity. He was prescribed Etodolac, an NSAID. The Veteran presented to the VA PCC in October 2009 complaining of continuing testicular pain. The clinician noted the Veteran had missed his scheduled appointment with the pain clinic. The physician continued the prescription for Etodolac and stated the Veteran would be referred again to the pain clinic. The Veteran had a VA pain management consult in December 2009 in which he reported testicular pain of 9-10/10 severity, described as non-radiating. The Veteran complained that the urology clinic had been unable to help him. The Veteran was offered a genitofemoral nerve block but stated he needed time to consider the option. Physical examination showed some tenderness and bilateral testicular mass. The clinical assessment was chronic testicular pain with bilateral hydrococeles and varicoceles. Review of the evidence shows the Veteran has required intermittent intensive management, in that he has received prescription medication for his pain and has been treated by the VA pain clinic. Further, the VA examination report characterized the disability as "moderate" in terms of its functional impact; this meets the criteria for a 10 percent rating under Diagnostic Code 7525. The Board has considered whether a rating higher than 10 percent is appropriate. However, the higher 30 percent rating is based on recurrent infection or requirement for continuous intensive management. The Veteran's genitourinary disability has not resulted in any inpatient treatment, surgery or narcotic pain medication. The Veteran has been treated on an outpatient basis every few months, which demonstrates intermittent, rather than continuous, management. Accordingly, his disability picture more closely approximates that envisioned by the criteria for the 10 percent rating under Diagnostic Code 7525. Because the schedular criteria for a rating higher than 10 percent was not met at any distinct period during the course of the appeal, staged ratings are not warranted. Hart, 21 Vet. App. 505. The preponderance of the evidence is at least in equipoise, and doubt has been resolved in the Veteran's favor. An evaluation of 10 percent for the epididymitis of the left testicle, but not more, is warranted. Extraschedular evaluation and TDIU The Board has considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(a). In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). The objective and subjective manifestations of the service-connected right hand disability and epididymis disability on appeal are specifically contemplated by the schedular criteria. Accordingly, referral of this case for extra-schedular consideration under 38 C.F.R. § 3.321(b) is not warranted. Finally, a request for a total disability rating due to individual unemployability (TDIU), whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities and is part of a claim for increased compensation; see Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran does not contend, and the evidence of record does not suggest, that he is rendered unemployable due solely to the effects of his service-connected disabilities; i.e., the right hand disability and epididymis disability on appeal. Accordingly, consideration for TDIU is not warranted. ENTITLEMENT TO 10 PERCENT RATING Applicable Laws and Regulations Whenever a veteran is suffering from two or more separate permanent service-connected disabilities of such character as clearly to interfere with normal employability, even though none of the disabilities may be of compensable degree under the 1945 Schedule for Rating Disabilities, the rating agency is authorized to apply a 10 percent rating, but not in combination with any other rating. 38 C.F.R. § 3.324. Evidence and Analysis The Board has assigned compensable, 10 percent, ratings to the Veteran's right hand disability and epididymitis. Because the Veteran now has one or more compensable service-connected disabilities he is no longer eligible for a 10 percent rating under 38 C.F.R. § 3.324. A 10 percent rating based on multiple noncompensable service-connected disabilities is not warranted as a matter of law. ORDER New and material evidence having not been received, the request to reopen a claim of service connection for bronchitis is denied. New and material evidence having not been received, the request to reopen a claim of service connection for bilateral hearing loss is denied. New and material evidence having not been received, the request to reopen a claim of service connection for a low back disability is denied. Service connection for an acquired psychiatric disorder is denied. Service connection for tinnitus is denied. A rating of 10 percent for the service-connected disability of the right hand is granted. A rating of 10 percent for the service-connected epididymitis of the left testicle is granted. A 10 percent rating based on multiple noncompensable service-connected disabilities is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs