Citation Nr: 1308987 Decision Date: 03/18/13 Archive Date: 03/25/13 DOCKET NO. 10-09 370 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for hearing loss, and if so, whether service connection is warranted. 2. Whether new and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for a left thigh disorder, and if so, whether service connection is warranted. 3. Whether new and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for chest pain, and if so, whether service connection is warranted. 4. Whether new and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for a right knee disorder, and if so, whether service connection is warranted. 5. Whether new and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for a left knee disorder, and if so, whether service connection is warranted. 6. Whether new and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for right foot disorder, and if so, whether service connection is warranted. 7. Entitlement to service connection for a chronic disability manifested by memory loss claimed as a result of an undiagnosed illness. 8. Entitlement to service connection for a back disorder to include injury residuals. 9. Entitlement to service connection for traumatic brain injury (TBI) residuals. 10. Entitlement to an increased disability evaluation for the Veteran's tinnitus, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Bill Parker, Jr., Representative ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran had active service from August 1977 to February 1992. The Veteran served in Southwest Asia. This matter came before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA). In a September 2008 rating decision, the RO determined that new and material evidence had not been received to reopen the Veteran's claim of entitlement to service connection for hearing loss; denied service connection for both posttraumatic stress disorder (PTSD) and memory loss claimed as a result of an undiagnosed illness; and denied an increased disability evaluation for the Veteran's tinnitus. In January 2011, the RO, in pertinent part, determined that new and material evidence had been received to reopen the Veteran's claims of entitlement to service connection for chest pain, a right knee disorder, and a left knee disorder; denied those claims on the merits; determined that new and material evidence had not been received to reopen the Veteran's claim of entitlement to service connection for a right foot disorder; and denied service connection for a back disorder and TBI residuals. In May 2012, the RO, in pertinent part, determined that new and material evidence had not been received to reopen the Veteran's claim of entitlement to service connection for a left thigh disorder. In September 2012, the RO granted service connection for PTSD; assigned a 30 percent evaluation for that disability; and effectuated the award as of February 28, 2011. As to the issues of whether new and material evidence has been received to reopen the Veteran's claims of entitlement to service connection for hearing loss, a left thigh disorder, chest pain, a right knee disorder, a left knee disorder, and a right foot disorder, the Board is required to consider the question of whether new and material evidence has been received to reopen the Veteran's claims without regard to the RO's determination in order to establish the Board's jurisdiction to address the underlying claims and to adjudicate the claims on a de novo basis. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Board has reframed the issue of service connection for a back disorder as entitlement to service connection for a back disorder to include injury residuals accordance with the United States Court of Appeals for Veterans Claims' (Court) decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). The Board has reviewed both the Veteran's physical claims files and his "Virtual VA" file so as to insure a total review of the evidence. The issues of whether new and material evidence has been received to reopen the Veteran's claims of entitlement to service connection for chest pain, a right knee disorder, a left knee disorder, and a right foot disorder are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The Department of Veterans Affairs (VA) will notify the Veteran if further action is required on his part. In his September 2012 Appeal to the Board (VA Form 9), the Veteran advanced a claim of entitlement to service connection for a bipolar disorder. The issue has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over it. The issue is referred to the RO for appropriate action. FINDINGS OF FACT 1. In November 2006, VA denied the Veteran's claim of service connection for hearing loss. The Veteran was informed in writing of the adverse determination and his appellate rights in November 2006. He did not submit a notice of disagreement (NOD) with this decision. 2. The additional documentation submitted since the November 2006 rating decision is either cumulative or redundant and does not raise a reasonable possibility of substantiating the Veteran's service connection claim for hearing loss when considered alone or in connection with the evidence previously of record. 3. In June 1992, the RO denied service connection for a left thigh disorder. The Veteran was informed in writing of the adverse determination and his appellate rights in June 1992. He did not submit a NOD with this decision. 4. The additional documentation submitted since the June 1992 rating decision is either cumulative or redundant and does not raise a reasonable possibility of substantiating the Veteran's service connection claim for a left thigh disorder when considered alone or in connection with the evidence previously of record. 5. Service connection is currently in effect for PTSD, a right (major) shoulder disorder, tinnitus, and pseudofolliculitis barbae. 6. A chronic disorder manifested by memory loss was not shown during active service or for many years thereafter. 7. The Veteran's memory loss has been shown to be etiologically related to his service-connected PTSD. 8. A chronic back disorder was not objectively shown during active service or at any time thereafter. 9. Chronic TBI residuals were not objectively shown during active service or at any time thereafter. 10. A 10 percent evaluation is currently in effect for the Veteran's tinnitus. The evaluation is the maximum schedular evaluation assignable for tinnitus. CONCLUSIONS OF LAW 1. The November 2006 rating decision denying service connection for hearing loss is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 2. New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for hearing loss has not been presented. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 3.156, 3.159, 3.326(a) (2012). 3. The June 1992 rating decision denying service connection for a left thigh disorder is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 4. New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for a left thigh disorder has not been presented. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 3.156, 3.159, 3.326(a) (2012). 5. Memory loss was incurred proximately due to or as the result of the Veteran's PTSD. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310(a), 3.326(a) (2012). 6. A back disorder to include injury residuals was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310(a), 3.326(a) (2012). 7. TBI residuals were not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310(a), 3.326(a) (2012). 8. The criteria for an evaluation in excess of 10 percent for the Veteran's tinnitus have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.87, Diagnostic Code 6260 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record that: (1) is necessary to substantiate the claim; (2) VA will seek to provide; and (3) the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (1) (2012). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable RO decision on the claim for VA benefits. With respect to an application to reopen a previously denied claim of service connection, the Court has held that VA must notify a claimant of both the evidence and information that is necessary to reopen a previously denied claim and that which is necessary to establish entitlement to service connection. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the Veteran with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. Id. In addressing the Veteran's application to reopen his claims of entitlement to service connection for hearing loss and a left thigh disorder and his claims of entitlement to service connection for memory loss, a back disorder, and TBI residuals; and an increased evaluation for his tinnitus, the Board finds that VA has satisfied its duty to notify under the VCAA. A June 2008 VCAA notice was provided to the Veteran which informed him of the evidence generally needed to support a claim of entitlement to service connection and the assignment of an evaluation and effective date for an initial award of service connection; the bases for the prior denial of service connection for hearing loss; what evidence was necessary to reopen his claim; what actions he needed to undertake; and how VA would assist him in developing his claims. An April 2011 VCAA notice was provided to the Veteran which informed him of the bases for the prior denial of service connection for a left thigh disorder; what evidence was necessary to reopen his claim; what actions he needed to undertake; and how VA would assist him in developing his claim. The June 2008 and April 2011 VCAA notices were issued to the Veteran prior to the rating decisions from which the instant appeal arises. The Veteran's claims were readjudicated in both the January 2010 and September 2012 statements of the case (SOC) and multiple supplemental statements of the case (SSOC). VA has taken all reasonable action necessary to properly assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). The Veteran has been afforded multiple VA examinations. The examination reports are of record. The Veteran requested a videoconference hearing before a Veterans Law Judge. The requested hearing was scheduled for February 2013. In January 2013, the Veteran withdrew his hearing request. All identified and available relevant documentation has been secured to the extent possible. All relevant facts have been developed to the extent possible. There remains no issue as to the substantial completeness of the Veteran's claims. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.159, 3.326(a) (2012). Any duty imposed on VA, including the duty to assist and to provide notification, has been met as set forth above. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In the circumstances of this case, additional efforts to notify or to assist the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). Consequently, the Board now turns to the merits of the Veteran's claims. II. Application to Reopen Generally, absent the filing of a NOD within one year of the date of mailing of the notification of the initial review and determination of the Veteran's claim and the subsequent filing of a timely substantive appeal, a rating determination is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.200, 20.300, 20.1103 (2012). The provisions of 38 C.F.R. § 3.156 (2012) direct, in pertinent part, that: (a) General. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. 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. (b) Pending claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. The provisions of 38 C.F.R. § 3.156(a) creates a low threshold, with the phrase "raises a reasonable possibility of substantiating the claim" enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court has elaborated on what constitutes "new and material evidence." New evidence is not that which is cumulative of other evidence already present in the record. In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In making the determination of materiality, "the Board is precluded from considering the credibility of the newly submitted evidence; strictly for purposes of determining whether new and material evidence has been presented, the Board must presume that the newly submitted evidence is credible." Duran v. Brown, 7 Vet. App. 216, 220 (1994) (citing Justus v. Principi, 3 Vet. App. 510, 513 (1992)). In applying 38 C.F.R. § 3.156(b), the Court has clarified that: When a claim is filed and the RO renders an adverse decision, the claimant has the right to disagree with that decision by filing an NOD within one year from the date of mailing of notice of the decision. 38 U.S.C. § 7105(b)(1). However, "[n]ew and material evidence received prior to the expiration of the appeal period ... will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period." Muehl v. West, 13 Vet. App. 159, 161 (1999); see also Bond v. Shinseki, 659 F.3d 1362, 1368-69 (Fed.Cir.2011). Where documents are within VA's control and could reasonably be expected to be a part of the record, such documents are, in contemplation of law, before VA and should be included in the record. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). A. Hearing Loss 1. Prior Rating Decisions In June 1992, the RO denied service connection for hearing loss as the Veteran's "hearing was normal during service" and "on VA examination." The Veteran was informed in writing of the adverse decision and his appellate rights in June 1992. The Veteran did not submit a NOD with the decision. The evidence upon which the RO formulated its decision may be briefly summarized. The Veteran's service treatment records make no reference to hearing loss or impaired hearing acuity. In his February 1992 Veteran's Application for Compensation or Pension (VA Form 21-526), the Veteran advanced that his hearing loss was initially manifested in February 1991. The report of a March 1992 VA examination for compensation purposes states that the Veteran complained of decreased hearing since March 1991. He clarified that his hearing loss was initially manifested during Operation Desert Storm. On audiological evaluation, the Veteran exhibited pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 30 25 15 LEFT 15 25 30 25 25 Speech audiometry revealed speech recognition ability of 96 percent, bilaterally. The Veteran's hearing was found to be within normal limits. New and material evidence pertaining to the issue of service connection for hearing loss was not received by the RO or constructively in its possession within one year of written notice to the Veteran of the June 1992 rating decision. He also did not file a timely notice of disagreement. Therefore, that decision is final. 38 C.F.R. § 3.156(b) (2012). In March 2006, the Veteran sought to reopen his claim of entitlement to service connection for hearing loss. In November 2006, VA determined that new and material evidence had been received to reopen the Veteran's claim of entitlement to service connection for hearing loss and denied the claim on the merits. The Veteran was informed in writing of the adverse decision and his appellate rights in November 2006. He did not submit a NOD with the decision. The additional documentation considered by VA in reaching its November 2006 decision consisted of the Veteran's service personnel records and the report of an October 2006 VA examination for compensation purposes. The service personnel records reflect that the Veteran served as a tank and wheeled vehicle mechanic. The October 2006 VA examination report stated that the Veteran complained of progressive hearing loss. He presented a history of inservice noise exposure associated with working on engines and "around large guns." On audiological evaluation, the Veteran exhibited pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 40 45 45 40 LEFT 50 45 40 45 45 Speech audiometry revealed speech recognition ability of 88 percent, bilaterally. The Veteran's was diagnosed with mild to moderate bilateral sensorineural hearing loss disability. The examiner opined that "the patient's present hearing loss is least is likely is not related to military service (sic)." New and material evidence pertaining to the issues of service connection for hearing loss was not received by VA or constructively in its possession within one year of written notice to the Veteran of the November 2006 rating decision. The Veteran also did not file a timely notice of disagreement regarding this determination. Therefore, that decision is final. 38 C.F.R. § 3.156(b) (2012). 2. New and Material Evidence The additional documentation received since the November 2006 rating decision consists of photocopies of the Veteran's service treatment records, VA clinical and examination documentation, private clinical documentation, and written statements from the Veteran. The service treatment records were previously considered by the RO in its June 1992 rating decision. In his March 2008 application to reopen his claim for service connection, the Veteran advanced that "service connection for hearing loss in both ears [was] caused by the Persian Gulf War under the presumption of soundness." VA clinical documentation dated in March 2011 reflects that the Veteran was fitted with hearing aids secondary to his sensorineural hearing loss disability. The remainder of the documentation does not pertain to the Veteran's hearing loss. In reviewing the additional documentation received since the November 2006 rating decision, the Board finds that it is essentially cumulative in nature. The additional documentation conveys that the Veteran has bilateral sensorineural hearing loss requiring the use of hearing aids which he believes is related to active service. Such documentation is cumulative of the evidence before VA in November 2006, as a current diagnosis of bilateral hearing loss was of record and recognized by the RO at that time. It does not raise a reasonable possibility of substantiating the Veteran's claim whether considered alone or in conjunction with the evidence previously of record. Additionally, the Veteran's assertions of in-service onset of his hearing loss are essentially duplicative of his prior contentions, and are therefore cumulative and redundant. In light of the foregoing, the Board finds that new and material evidence has not been received to reopen the Veteran's claim of entitlement to service connection for hearing loss. B. Left Thigh Disorder 1. Prior Rating Decision In June 1992, the RO denied service connection for a left thigh disorder as the claimed disorder was no shown by the evidence of record. The Veteran was informed in writing of the adverse decision and his appellate rights in June 1992. The Veteran did not submit a timely NOD with the decision. The evidence upon which the RO formulated its decision may be briefly summarized. The Veteran's service treatment records make no reference to a left thigh disorder or complaints. In his February 1992 Veteran's Application for Compensation or Pension (VA Form 21-526), the Veteran advanced that his left thigh disorder was initially manifested in November 1991. The report of the March 1992 VA examination for compensation purposes states that the Veteran presented a history of a left thigh contusion sustained when "an engine slipped and fell on his left thigh." An impression of "left thigh contusion, resolved, no symptoms" was advanced. New and material evidence pertaining to the issue of service connection for a left thigh disorder was not received by the RO or constructively in its possession within one year of written notice to the Veteran of the June 1992 rating decision. Additionally, the Veteran did not file a timely notice of disagreement regarding this determination. Therefore, that decision is final. 38 C.F.R. § 3.156(b) (2012). 2. New and Material Evidence The additional documentation received since the June 1992 rating decision consists of photocopies of the Veteran's service treatment records, his service personnel records, VA clinical and examination documentation, private clinical documentation; and written statements from the Veteran. The service treatment records were previously considered by the RO in its June 1992 rating decision. In his January 2011 application to reopen his claim for service connection, the Veteran advanced that service connection was warranted for arthritis of the left thigh. The remainder of the documentation does not pertain to the Veteran's left thigh. In reviewing the additional documentation received since the June 1992 rating decision, the Board finds that it is essentially not relevant to the issue of service connection for a left thigh disorder. While the Veteran's application to reopen his claim for service connection addresses the issue, it advances solely the Veteran claim without any substantive assertion or other evidentiary statement. Such documentation is cumulative of the documentation previously considered by the RO and does not raise a reasonable possibility of substantiating the Veteran's claim whether considered alone or in conjunction with the evidence previously of record. In light of the foregoing, the Board finds that new and material evidence has not been received to reopen the Veteran's claim of entitlement to service connection for a left thigh disorder. III. Service Connection Service connection may be granted for chronic disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). 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) (2012). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). The Court has clarified that service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310(a) where it is demonstrated that a service-connected disorder has aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Service connection is currently in effect for PTSD, a right (major) shoulder disorder, tinnitus, and pseudofolliculitis barbae. Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a) (2012); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person 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 (Fed. Cir. 2009). A. Memory Loss In his March 2008 claim for service connection, the Veteran advanced that service connection was warranted for "memory loss caused by the Persian Gulf War under the presumption of soundness." The Veteran's service treatment records make no reference to either memory loss or a chronic disorder manifested by memory loss. In his October 2008 NOD, the Veteran reiterated that he was "seeking service connection for memory loss under the presumption of soundness." An April 2010 VA War-Related Illness examination reports that the Veteran presented a history of "memory issues" since approximately 1993 or 1994. An assessment of "memory impairment" was advanced. A May 2010 VA mental health clinic treatment record states that the Veteran complained of "memory problems" which he described as "minimal/very mild memory difficulties without significant functional loss." No diagnosis was advanced. At an August 2012 psychiatric VA examination for compensation purposes, the Veteran was found to exhibit mild memory loss secondary to his service-connected PTSD. The Veteran has been diagnosed by a VA examiner with memory loss secondary to his service-connected PTSD. In the absence of any competent evidence to the contrary, the Board concludes that service connection for memory loss is now warranted. B. Back Disorder The Veteran's service treatment records reflect that he was seen for back complaints. A May 1980 treatment entry states that the Veteran complained of low back pain of two days' duration. Assessments of low back pain and low back strain were advanced. A November 1981 treatment record relates that the Veteran complained of low back pain. An assessment of low back pain "[secondary] to muscle strain" was advanced. In his February 2010 claim, the Veteran asserted that service connection for back injury residuals was warranted. In his January 2011 NOD, the Veteran asserted that his low back pain was secondary to muscle strain. At an August 2012 VA examination for compensation purposes, the Veteran complained of chronic low back pain and stiffness. He reported that he had injured his lower back when a heavy steel tank hatch fell on him. No thoracolumbar spine disorder was diagnosed. The examiner commented that: 2 instances of low back complaints found: May 1980, Nov[ember] 1981, both diagnosed as strains. No [follow up] visits after each episode for [greater than] 1 year. No [complaints of] lumbar back issues on exam 1988. It is therefore less likely than not that the current lumbar complaints are related to the inservice complaints and diagnoses 30 years ago. The Board has reviewed the probative evidence of record including the Veteran's written statements on appeal. The Veteran was seen for low back pain on two occasions during active service. The August 2012 VA examination report expressly concluded that the Veteran did not have a chronic thoracolumbar spine disorder and his current low back complaints were not related to his in-service episodic low back strain. No medical professional has diagnosed the Veteran with a chronic thoracolumbar or low back disorder. The Veteran asserts that he sustained a chronic low back disorder secondary to a heavy tank hatch falling on him. He is clearly competent to state that he sustained such an injury. The Veteran was a tank mechanic during active service. Therefore, the Board observes that the Veteran's statements are credible. However, the Board finds that the Veteran, as a layman, is not competent to offer an opinion concerning the diagnosis of a chronic spinal disorder and/or back disorder. He has not offered any medical qualifications. The question of the diagnosis and etiology of a chronic back or spinal disability is not amenable to observation alone and is too complex to be addressed by a layperson. Such a relationship is the subject of extensive research by medical professionals. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds that the weight of the evidence demonstrates that the Veteran did not have continuity of any back disorder symptomatology following service. As indicated above, the evidence includes that the Veteran did not claim this disorder when filing a VA compensation claim in 1992 and did not report any back history or symptoms at the time of the March 1992 VA medical examination that specifically addressed his other service connection claims. The Board concludes that, in the context of no indications of chronic symptoms during service or near the time of service separation, the fact that the Veteran did not mention a disability of the cervical or thoracic spine either upon filing his 1992 compensation claim or during the March 1992 VA examination further indicates that he did not have chronic or continuous symptoms of the back. The Board finds the Veteran's recent contentions regarding the continuity of his neck and upper back pain since service, which were made as part of the current claim for VA compensation, are inconsistent with and outweighed by the other lay and medical evidence of record. Such evidence that weighs against the Veteran's current assertions includes the service treatment record evidence, the Veteran's own prior in-service and post-service medical histories, the Veteran's actions after service, and the absence of evidence of complaints, findings, or treatment for many years after service; therefore, the Veteran's recent assertions of symptomatology in service and continuously since service are not credible. See Cromer v. Nicholson, 19 Vet. App. 215 (2005). It is significant that, at the time the Veteran filed a claim for compensation (service connection) in 1992, he did not claim or even mention any history or symptoms of a spinal disorder. This action suggests to the Board that there was no pertinent symptomatology of the back at that time. While inaction regarding filing a claim is not necessarily indicative of the absence of symptomatology, where, as here, a veteran takes action regarding other claims, it becomes reasonable to expect that the veteran is presenting all issues for which he is experiencing symptoms that he believes are related to service. In other words, in this case, the Veteran demonstrated that he understood the procedure for filing a claim for VA disability compensation, and he followed that procedure in other instances where he believed he was entitled to those benefits. In such circumstances, it is more reasonable to expect a complete reporting than for certain symptomatology to be omitted. Thus, the Veteran's inaction regarding a claim for a back disorder, when viewed in the context of his action regarding other claims for compensation, may reasonably be interpreted as indicative of the Veteran's belief that he did not sustain a back injury in service and did not have such symptomatology at the time he filed the claim for compensation in 1992. Therefore, based on the above rationale, the Board concludes that service connection for a back disorder to include injury residuals is not warranted. C. TBI Residuals The report of the Veteran's July 1977 physical examination for service entrance notes that the Veteran presented a history of a concussion at the age of 16. The examiner noted "concussion age 16, no sequela." On physical evaluation, the examiner noted no organic brain or head abnormalities. The Veteran's service treatment records make no reference to TBI residuals, other head trauma residuals, or an organic brain disorder. In his February 2010 claim, the Veteran advanced that service connection for "memory loss aggravated by a prior head trauma" was warranted. At the April 2010 VA War-related Illness examination, the Veteran reported that he had sustained a head injury while in high school and subsequently experienced chronic headaches in "2005 or 2006." An assessment of headaches was advanced. In his January 2011 NOD, the Veteran conveyed that he experienced a "TBI aggravated in service." At the August 2012 VA PTSD examination for compensation purposes, the Veteran was determined not to have been diagnosed with a TBI. The Veteran reported sustaining a pre-service concussion without sequela at his March 1977 physical examination for service entrance. As an initial matter, while the Veteran's history of a pre-service concussion was noted on service entrance, physical examination indicated no residuals of this injury. In the absence of any sequela noted on service entrance examination, the presumption of soundness attaches. See Crowe v. Brown, 7 Vet. App. 238 (1994). Nevertheless, the clinical documentation of record does not reflect that he has ever been diagnosed with chronic residuals of either his pre-service concussion or a TBI. The inservice and post-service clinical documentation of record does not indicate the Veteran has been diagnosed with chronic TBI residuals or another organic brain disorder at any time. The August 2012 VA examination report expressly concluded that the Veteran has not been diagnosed with chronic TBI residuals. No competent medical professional has diagnosed the Veteran with chronic TBI residuals or an organic brain disorder. The Veteran asserts that he sustained an in-service aggravation of TBI residuals, or an in-service TBI. His statements are not supported by any objective clinical evidence. The Board finds that the Veteran, as a layman, is not competent to offer an opinion concerning the diagnosis or existence of chronic TBI residuals or the in-service incurrence or aggravation of such a disorder. The question of the diagnosis and etiology of such a disability is not amenable to observation alone and is too complex to be addressed by a layperson. It is the subject of medical education and research See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The competent evidence of record contains no diagnosis or other documentation of chronic TBI residuals. In the absence of such evidence, there can be no reasonable claim of aggravation of claimed TBI residuals. Given such facts, the Board concludes that service connection for chronic TBI residuals is not warranted. IV. Increased Evaluation A. Historical Review The report of a March 1992 VA examination for compensation purposes reflects that the Veteran was diagnosed with tinnitus. In November 2006, VA established service connection for tinnitus; assigned a 10 percent evaluation for that disability; and effectuated the award as of March 8, 2006. B. Evaluation Disability evaluations are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule For Rating Disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). Recurrent tinnitus warrants a 10 percent evaluation. Only a single evaluation is to be assigned for recurrent tinnitus no matter whether the sound is perceived in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Diagnostic Code 6260 (2012). The Veteran is currently in receipt of a 10 percent evaluation for his tinnitus. This represents the maximum evaluation assignable under Diagnostic Code 6260. Additionally, separate compensable ratings may not be granted for each ear. See Smith v. Nicholson, 451 F.3d. 1344 (Fed. Cir. 2006). The Veteran's tinnitus falls within the criteria for a 10 percent evaluation under the provisions of 38 C.F.R. § 4.87, Diagnostic Code 6260 (2012). See Thun v. Peake, 22 Vet. App. 111(2008). The Veteran has not identified any specific factors which may be considered to be exceptional or unusual in light of VA's rating schedule. The evidence of record does not otherwise show that there is an exceptional disability picture. The documentation of record is void of any finding of exceptional limitation due to the Veteran's tinnitus beyond that contemplated by the rating schedule. The evidence is clear that the Veteran's tinnitus symptomatology has some impact on his employability; however, loss of industrial capacity is the principal factor in assigning schedular disability evaluations. See 38 C.F.R. §§ 3.321(a), 4.1 (2012). The provisions of 38 C.F.R. § 4.1 specifically state: "generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." See also Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability evaluation itself is recognition that industrial capabilities are impaired). Thus, the Board finds that referral for consideration of assignment of an evaluation on an extra-schedular basis is not warranted. 38 C.F.R. § 3.321(b)(1) (2012). ORDER The Veteran's application to reopen his claim of entitlement to service connection for hearing loss is denied. The Veteran's application to reopen his claim of entitlement to service connection for a left thigh disorder is denied. Service connection for memory loss is granted. Service connection for a back disorder to include injury residuals is denied. Service connection for TBI residuals is denied. An increased evaluation for the Veteran's tinnitus is denied. REMAND In January 2011, the Veteran advanced a "Motion for CUE (Clear and Unmistakable Error)" requesting revision of those portions of the RO's June 1992 rating decision which denied service connection for chest pain, a right knee disorder, a left knee disorder, and a right foot disorder. The issues of whether the RO's June 1992 rating decision was clearly and unmistakably erroneous in denying service connection for chest pain, a right knee disorder, a left knee disorder, and a right foot disorder has not been adjudicated. The Board finds that those issues are inextricably intertwined with the certified issues of whether new and material evidence has been received to reopen the Veteran's claims of entitlement to service connection for chest pain, a right knee disorder, a left knee disorder, and a right foot disorder as they address the finality of the prior rating decision. Harris v. Derwinski, 1 Vet. App. 180 (19910 (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The fact that an issue is inextricably intertwined does not establish that the Board has jurisdiction of the issue, only that the Board cannot fairly proceed while there are outstanding matters that must be addressed by the RO in the first instance. Accordingly, the case is REMANDED for the following action: 1. Adjudicate the issues of whether the RO's June 1992 rating decision was clearly and unmistakably erroneous in denying service connection for chest pain, a right knee disorder, a left knee disorder, and a right foot disorder. The Veteran should be informed in writing of the resulting decision and his associated appellate rights. The issues are not on appeal unless there is a NOD and a substantive appeal as to the issues. 2. Thereafter, ensure that the development above has been completed in accordance with the remand instructions and undertake any other development action that is deemed warranted. Then readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran should be provided a SSOC which addresses all relevant actions taken on the claims, to include a summary of the evidence and applicable law and regulations considered, since the issuance of the last SSOC. An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002). _________________________________________________ T. D. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs