Citation Nr: 1312728 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 10-49 259 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to service connection for a heart condition, to include coronary artery disease. 3. Entitlement to service connection for a disability characterized as left flank pain and numbness. 4. Entitlement to service connection for a low back disability. 5. Entitlement to service connection for bilateral plantar fasciitis. 6. Entitlement to service connection for bilateral pes planus. 7. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a cervical spine disability. 8. Entitlement to an initial evaluation in excess of 10 percent for hypertension. 9. Entitlement to an initial evaluation in excess of 10 percent for tinnitus. 10. Entitlement to an initial compensable evaluation for degenerative arthritis of the left knee. 11. Entitlement to an initial compensable evaluation for degenerative arthritis of the right knee. REPRESENTATION Appellant represented by: Andrew L. Wener, Attorney at Law ATTORNEY FOR THE BOARD Barone, Jacqueline INTRODUCTION The Veteran had active service from September 1977 to June 1981, from February 1985 to February 1987, and from October 1987 to December 2001. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In his November 2010 substantive appeal, the Veteran requested a Board hearing. However, he withdrew his hearing request in September 2011. The Board notes that a Virtual VA e-file exists for this Veteran. This e-file was reviewed for new or relevant information; it contains duplicative information that is already in the claims file or information that is not relevant to the instant appeal. The issues of entitlement to service connection for a low back disability, left flank pain, bilateral plantar fasciitis, bilateral pes planus; whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a cervical spine disability; and for increased ratings for a bilateral knee disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran does not have bilateral hearing loss disability for VA compensation purposes. 2. There is no diagnosis of a heart condition that is related to service. 3. Hypertension is not manifest by diastolic pressure predominantly or even approaching 110 or more or systolic pressure predominately or even approaching 200 or more; continuous medication to control hypertension is required. 4. Bilateral tinnitus is assigned a 10 percent rating, the maximum rating authorized under Diagnostic Code 6260. CONCLUSIONS OF LAW 1. Bilateral hearing loss disability was not incurred in or aggravated by service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). 2. A heart condition was not incurred in or aggravated during service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 3. The criteria for an evaluation in excess of 10 percent for hypertension have not been met. 38 U.S.C.A. §§ 1155 , 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7101 (2012). 4. The claim of entitlement to a higher disability rating for tinnitus is without legal merit. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.25, 4.87, Diagnostic Code 6260 (2003), Diagnostic Code 6260 (2012); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the U. S. Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. A letter dated in November 2009 discussed the evidence necessary to support the Veteran's claims for service connection. The Veteran was invited to submit relevant evidence. The evidence of record was listed and the Veteran was told how VA would assist him in obtaining additional relevant evidence. This letter also advised the Veteran of the manner in which VA determines disability ratings and effective dates. An April 2010 letter advised the Veteran of the status of his claim. The Board finds that the content of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. With respect to the evaluation of the Veteran's hypertension and tinnitus, the Board notes that this is a case in which the Veteran is challenging the initial evaluations assigned following the grant of service connection. In Dingess, the Court of Appeals for Veterans Claims held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. With respect VA's duty to assist, the Board notes that identified records have been associated with the claims file. VA examinations have been carried out. The Board finds that the examinations are adequate in that the examiners reviewed the record, interviewed the Veteran, and performed an appropriate examination prior to providing their conclusions. The reports of record are thorough and consistent with contemporaneous treatment records. The Veteran has not otherwise identified any additional evidence or information which could be obtained to substantiate the claims. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis Service Connection Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). However, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). Service incurrence or aggravation of arthritis or diseases of the central nervous system may be presumed to have been incurred or aggravated if it is manifested to a compensable degree within a year of the Veteran's discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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). 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). Moreover, the 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). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002). Bilateral Hearing Loss Disability For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2012). The Court has observed that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Service treatment records contain numerous audiometric testing reports. Such testing in May 1978 revealed the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 Right 20 10 0 10 20 Left 10 5 20 10 15 In June 1978, audiometric testing revealed the following: HERTZ 500 1000 2000 3000 4000 Right 0 10 10 0 10 Left 0 5 5 0 0 On physical examination in June 1981 audiometric testing revealed the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 Right 5 5 0 5 10 Left 5 5 5 0 5 At that time, the Veteran endorsed ear, nose, or throat trouble but denied hearing loss. On reenlistment examination in February 1985, audiometric testing revealed the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 Right 15 10 5 10 15 Left 20 15 15 10 10 Regarding his medical history at that time, the Veteran denied ear trouble and hearing loss. In June 1985 audiometric testing revealed the following: HERTZ 500 1000 2000 3000 4000 Right 10 5 5 10 15 Left 5 10 15 10 0 On separation examination in January 1987, audiometric testing revealed the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 Right 10 15 5 15 25 Left 10 5 15 5 10 The Veteran denied ear trouble and hearing loss when reporting his medical history. In October 1987 the following puretone thresholds were reported: HERTZ 500 1000 2000 3000 4000 Right 10 10 5 10 25 Left 10 5 15 0 10 In August 1990 audiometric testing revealed the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 Right 5 10 0 35 30 Left 5 5 10 5 10 Audiometry in October 1991 resulted in the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 Right 10 10 5 20 25 Left 5 0 10 0 5 On periodic examination in August 1993, audiometric testing revealed the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 Right 0 5 5 20 25 Left 0 5 15 5 5 Neither the examiner's notes nor the summary of defects and diagnoses references any abnormal finding pertaining to the Veteran's hearing acuity. He denied ear trouble and hearing loss. In February 1998, the following puretone thresholds were reported: HERTZ 500 1000 2000 3000 4000 Right 0 5 5 30 30 Left 0 5 5 0 10 On periodic examination in April 1999 the following puretone thresholds were reported: HERTZ 500 1000 2000 3000 4000 Right 5 10 10 20 35 Left 10 10 10 10 10 The examiner concluded that the Veteran was qualified for service. He included no reference to the Veteran's hearing acuity in his summary of defects and diagnoses. At that time, the Veteran endorsed ear, nose, and throat trouble but denied hearing loss. On separation examination in July 2001 audiometric testing revealed the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 Right 5 5 10 30 25 Left 5 10 15 10 20 At the time of examination, the Veteran indicated that he did not know if he had ever had or currently had hearing loss. The associated report of medical assessment indicates that the Veteran intended to seek VA disability for his knees and back. On VA audiological examination in May 2010, the examiner noted that several hearing tests results were available in the claims file. He indicated that no significant threshold shifts were found from 1977 to 1981. He noted that a significant threshold shift was found at 4000 Hertz for the right ear between 1985 and 1987, and that a significant shift was found at 3000 Hertz for the right ear and at 4000 Hertz for the left ear between 1987 and 2001. The Veteran stated that he worked on the flight line during service and slept underneath the landing strip on an aircraft carrier. Audiometric testing revealed the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 Average Right 10 20 20 30 20 22.5 Left 10 20 20 15 15 17.5 Speech recognition scores were 100 percent bilaterally. The examiner indicated that the Veteran had normal hearing bilaterally with a mild loss at 3000 Hertz in the right ear, and excellent speech scores bilaterally. She concluded that it was likely that hearing loss and tinnitus were related to noise exposure in service. She pointed out that there was a significant threshold shift of 10 decibels or more for both ears in the higher frequencies. Having carefully reviewed the record, the Board concludes that service connection is not warranted for bilateral hearing loss disability. In that regard the Board notes that the grant of service connection requires competent evidence to establish a diagnosis of the claimed disability. Moreover, VA regulations require that hearing loss be reported at a certain level before it will be considered a disability for compensation purposes. In this case, neither the service records nor those subsequent to service demonstrates that the Veteran has ever had bilateral hearing loss disability as defined by VA regulations. The Board acknowledges the Veteran's report that he has experienced a decrease in hearing acuity, and the VA examiner's opinion that current hearing deficit is related to noise exposure in service; however, in the absence of proof of a present disability as defined by VA regulations, there can be no valid claim for service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, the claim of entitlement to service connection for bilateral hearing loss disability must be denied. The preponderance of the evidence is against the claim, and the benefit of the doubt doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Heart Condition Service treatment records include a March 1994 record indicating that a cardiac evaluation had been completed in December 1993. The provider noted that the cardiologist found no cardiac etiology. The assessment was normal examination. On periodic examination in April 1999 the Veteran endorsed pain or pressure in his chest. The examiner noted that the Veteran was evaluated by a cardiologist in 1993 after experiencing chest pain while running. He noted that the exercise stress test and thallium scan were normal, but that echo showed a concentric hypertrophy which was not considered disabling. Cardiology notes dated in May 1999 indicate that the Veteran was seen in follow up for his history of concentric left ventricle hypertrophy which was detected on echocardiogram in 1993. The provider noted that the Veteran had carried a diagnosis of borderline hypertension since 1989, but that he had not been on medical therapy. He also noted atypical chest pain, but noted that he would not pursue that finding unless new symptoms developed. The associated echo report indicates that the left ventricle had normal overall size but mild concentric hypertrophy and no regional wall motion abnormalities. Trace mitral insufficiency was also noted. On separation examination in July 2001 the Veteran again endorsed pain or pressure in his chest. The examiner specified that the Veteran had experienced chest pain in May 1994 while running during physical training. The summary of defects and diagnoses did not include any statement suggestive or heart disease. On VA examination in April 2010, the Veteran's history was reviewed. The examiner noted that the Veteran was started on blood pressure medications just prior to separation from service in 2001. She also noted that the Veteran underwent cardiac evaluation in 1993 for chest pain and an abnormal EKG, including an echocardiogram that was interpreted as concentric left ventricular hypertrophy. She indicated that that EKG also revealed normal left ventricular function, normal valves, and an ejection fraction of 60 percent. She related that an exercise treadmill was sub maximal without evidence of ischemia, and that a Spect thallium was interpreted as sub maximal but negative for ischemia, normal hemodynamic response to exercise, and fair exercise tolerance for age. The examiner noted that the Veteran presented records from Baptist East Hospital regarding hospitalization in May 2006. She indicated that those records showed treatment for pericarditis and that cardiac angiography was conducted to rule out an acute myocardial infarction, and that no significant coronary artery disease was found. She also indicated that echocardiogram at that time was interpreted as within normal limits with an ejection fraction of 65 percent. A stress test was inconclusive for exercise induced myocardial ischemia. The heart size determined by echocardiogram was normal. Auto-instrument diagnosis revealed normal sinus rhythm, possible left atrial enlargement, and nonspecific T wave abnormality. The examiner concluded that there was no diagnosis of heart disease. She noted that although echocardiogram in 1993 was interpreted as concentric left ventricular hypertrophy, and the current EKG suggested left atrial enlargement, two echocardiograms in 2006 and 2010 were interpreted as normal chamber size with normal ejection fraction of 60 to 65 percent. She pointed out that the Veteran had a sub maximal exercise treadmill test, achieving METS of 7 before stopping due to non-cardiac related knee discomfort. She also noted that cardiac angiography in 2006 revealed no significant coronary artery diseases, and that the Veteran's predicted risk of coronary artery disease based on the current exercise treadmill test was low. She concluded that with such test results, it was less likely than not that the Veteran had silent coronary artery disease. Having carefully reviewed the record regarding this claim, the Board finds that service connection is not warranted. In that regard, there is no credible evidence of any chronic heart condition in service, and the Veteran's heart was normal at discharge. Moreover, the April 2010 VA examiner reviewed the record and concluded that there is no current heart disease. The grant of service connection requires competent evidence to establish a diagnosis and, as in this case, relate the diagnosis to the Veteran's service. In this case, the record does not contain competent evidence showing that the Veteran has a heart condition related to injury or disease in service. The Veteran has not identified or produced any evidence, medical or otherwise, that would tend to show that he currently has a heart disorder that is due to disease or injury in service. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (2001). Rather, at the most recent VA examination, the examiner specified that there was no evidence of hypertensive or ischemic heart disease. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability, there can be no valid claim. Brammer. In summary, there is no credible evidence of a chronic disability in service, no credible evidence of a continuity of symptomatology since service, and no medical evidence establishing any current heart disease. As the preponderance of the evidence is against the claim, there is no doubt to be resolved. Consequently, the benefit sought on appeal is denied. Evaluations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (2012). The Board attempts to determine the extent to which the Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155 ; 38 C.F.R. §§ 4.1, 4.10 (2012). The Board observes that in cases where the original rating assigned is appealed, consideration must be given to whether a higher rating is warranted at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. 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. Hypertension Service treatment records show a diagnosis of hypertension during service. In September 2000 the Veteran's blood pressure was measured as 148/92. In March 2001 it was 154/77. At that time, the provider indicated that medication would be started. In July 2001 the Veteran's blood pressure was 130/88. In August 2001 it was 144/96. On separation examination in July 2001 it was 160/100. A VA treatment record dated in March 2009 reflects blood pressure readings of 140/86 and 155/93. In May 2009 the Veteran's blood pressure was 150/90. A record dated in July 2009 indicates a blood pressure reading of 151/71. In September 2009 the Veteran's blood pressure was 146/84. In April 2010 it was 136/67. On VA heart examination in April 2010, the Veteran's blood pressure was 186/86, 182/91, and 166/101. Under 38 C.F.R. § 4.104 , Diagnostic Code 7101, pertaining to hypertensive vascular disease, a 10 percent rating is in order when diastolic pressure is predominantly 100 or more, or; when systolic pressure is predominantly 160 or more, or; when an individual with a history of diastolic pressure predominantly 100 or more requires continuous medication for control. A 20 percent rating is warranted when diastolic pressure is predominantly 110 or more, or; when systolic pressure is predominantly 200 or more. When diastolic pressure is predominantly 120 or more, a 40 percent rating is warranted. A maximum schedular rating of 60 percent is assigned when diastolic pressure is predominantly 130 or more. 38 C.F.R. § 4.104, Code 7101 (2012). Upon careful review of the evidence, the Board concludes that an evaluation in excess of 10 percent for hypertension is not for application. In order to warrant a 20 percent disability evaluation, the next higher rating, the evidence must show diastolic pressure predominately 110 or more or systolic pressure predominately 200 or more. Here, the Board notes that diastolic pressure has been at highest, 101 in April 2010. An August 2001 reading indicated diastolic pressure of 100. However, the other readings of record were less than 100; as such, it cannot be stated that diastolic pressure was predominately 110 or more. Moreover, the Veteran's systolic pressure has not been clinically recorded as being 200 or more. Rather, at its highest, it was 186 in April 2010. In sum, the Veteran's blood pressure readings are clearly contemplated by the criteria for a 10 percent evaluation. The Veteran is competent to state that his disability has worsened. However, the medical evidence in this case demonstrates that the Veteran's hypertension is not of sufficient severity to warrant assignment of a higher evaluation. In light of the above discussion, the Board finds that the preponderance of the evidence is against a grant of an evaluation greater than 10 percent for hypertension, and there is no doubt to be resolved. Gilbert. Tinnitus The Veteran disagreed with the initial 10 percent evaluation assigned to his tinnitus. The RO assigned such a rating because under Diagnostic Code 6260 the maximum evaluation for tinnitus is 10 percent. The Veteran appealed the initial evaluation to the Board. In Smith v. Nicholson, 19 Vet. App. 63, 78 (2005) the Court held that the pre-1999 and pre-June 13, 2003 versions of DC 6260 required the assignment of dual ratings for bilateral tinnitus. VA appealed this decision to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) and stayed the adjudication of tinnitus rating cases affected by the Smith decision. In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the Federal Circuit concluded that the Court erred in not deferring to the VA's interpretation of its own regulations, 38 C.F.R. § 4.25(b) and Diagnostic Code 6260, which limits a Veteran to a single disability evaluation for tinnitus, regardless of whether the tinnitus is unilateral or bilateral. Subsequently, the stay of adjudication of tinnitus rating cases was lifted. The Veteran's service-connected tinnitus has been assigned the maximum schedular rating available. 38 C.F.R. §4.87, Diagnostic Code 6260. As there is no legal basis upon which to award separate schedular evaluations for tinnitus in each ear, the Veteran's appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). Extraschedular Consideration The Board has also considered whether the Veteran's hypertension or tinnitus presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extra-schedular rating is warranted. Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected disabilities are inadequate. A comparison between the level of severity and symptomatology of the Veteran's service-connected hypertension and tinnitus with the established criteria shows that the rating criteria reasonably describe the Veteran's disability levels and symptomatology. Consequently, the Board has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER Entitlement to service connection for bilateral hearing loss disability is denied. Entitlement to service connection for a heart condition is denied. Entitlement to an initial evaluation in excess of 10 percent for hypertension is denied. Entitlement to an initial evaluation in excess of 10 percent for tinnitus is denied. REMAND Service Connection for a Low Back Disability Service treatment records indicate that the Veteran endorsed recurrent back pain on examination in June 1981. He again endorsed recurrent back pain during a periodic examination in August 1993. The examiner noted that the Veteran had pulled a muscle in his back in July 1993 and had previously been involved in two motor vehicle accidents. The Veteran complained of low back pain in December 1994. The assessment was rule out muscle spasm. In January 1997, the Veteran presented with a two day history of low back pain. He stated that he had experienced flare ups of low back pain since a motor vehicle accident in 1987. Mechanical low back pain was assessed. In February 1997 the Veteran complained of stiffness in his back, and noted that he experienced pain and increased stiffness with running. The assessment was mechanical back pain. The same assessment was made in January and February 1998. In March 1998 a provider assessed chronic low back pain and spasm. In September 1998 a provider assessed chronic low back pain due to injury/trauma. He was placed on a no run chit and referred to physical therapy. The Veteran was again treated for mechanical low back pain in March 1999. On periodic examination in April 1999 the Veteran endorsed recurrent back pain and indicated that he had a history of mechanical back pain. The examiner noted that such was not considered disabling. On separation examination the Veteran again endorsed recurrent back pain. He indicated that he was doing back exercises. The report of a VA spine examination carried out in May 2010 notes the Veteran's report of injury during a motor vehicle accident in June 1988. Following physical examination, the assessment was age related changes consistent with normal lumbar spine. The examiner did not elaborate with respect to the meaning of "age related changes," and did not reconcile his assessment of such changes with his statement that the Veteran's lumbar spine was "normal." He also failed to provide an opinion regarding whether the "age related changes" noted on examination were related to service. In light of the numerous treatment encounters during service for low back pain, the Board concludes that the question of the etiology of any currently present low back finding must be addressed. Once VA provides an examination, it must be adequate or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For the reasons stated above, the May 2010 examination was inadequate for the purpose of deciding this claim. Accordingly, the issue must be remanded so that another examination may be scheduled. The Board further notes that a May 2009 VA treatment record reflects the Veteran's complaint of left leg pain down the back of his leg into his calf. This suggests that the Veteran's reports of left flank pain and numbness might be related to his claimed low back disability. Because there is a possibility that the claimed left flank symptoms might be related to the low back disability, the Board conclude that it would be premature to decide the left flank claim prior to the development identified above. See Henderson v. West, 12 Vet. App. 11 (1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991), for the proposition that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources, the claims are inextricably intertwined. Service Connection for Plantar Fasciitis and Flat Feet A Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for active service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). A pre-existing injury or disease will be considered to have been aggravated by active military, naval or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as contrasted to the symptoms of that disability, has worsened. See Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). Service treatment records reflect that on initial enlistment examination in September 1977, mild pes planus was noted. The examiner indicated that such was not disabling. At that time, the Veteran denied foot trouble. In April 1979 the Veteran complained of pain in the arch of his right foot. He denied history of trauma. The assessment was flat feet. The Veteran endorsed foot trouble on examination in June 1981. The report of medical history includes a stamped statement that all affirmative answers had been evaluated and found to be of no clinical significance at that time and were not considered disabling. In March 1999 the Veteran was seen for complaints of pain on the plantar surface of his right foot. He denied trauma. The assessment was plantar fasciitis. Tendonitis was subsequently assessed in March 1999. On periodic examination in April 1999 the Veteran again reported foot trouble. He specified that he had pain in the metatarsal of his right foot with running. The Veteran again endorsed foot trouble on separation examination in July 2001. He specified that he had flat feet and sometimes experienced discomfort while running. On VA examination in May 2010, the relevant assessment was mild pes planus with mild degenerative changes. It is unclear whether the degenerative changes noted on examination are related to either the pre-existing pes planus or to the in-service findings of plantar fasciitis. In McLendon v. Nicholson, 20 Vet App. 79 (2006), the U.S. Court of Appeals for Veterans Claims held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in- service event, and (4) insufficient evidence to decide the case. Here there is evidence of in-service treatment for foot related complaints and current findings relating to the feet, but there is insufficient evidence to decide these claims at present. In that regard, while there are current findings related to the Veteran's feet, the examiner did not provide an opinion with respect to such findings are related to any incident of service. As such, the Board concludes that a current examination is necessary to determine the etiology of any currently present foot disability, to include whether bilateral pes planus was aggravated by service. New and Material Evidence The Court has issued a decision which held that, in the context of a claim to reopen, VCAA notice must include an explanation of 1) the evidence and information necessary to establish entitlement to the underlying claim for the benefit sought; and 2) what constitutes new and material evidence to reopen the claim as determined by the evidence of record at the time of the previous final denial. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The Court further explained that a notice letter must describe what evidence would be necessary to substantiate the element or elements required to establish the underlying claim that were found insufficient in the previous denial. See id. Here, a November 2009 letter advised the Veteran his claim of entitlement to service connection for a cervical spine disability was previously denied because the condition neither occurred in nor was caused by service. The Veteran was not advised of the evidence necessary to substantiate the element or elements required to establish the underlying service-connection claim. The Board therefore finds that the November 2009 notice was insufficient. Evaluation of Bilateral Knees Service treatment records reflect a long history of complaints related to both of the Veteran's knees. Degenerative joint disease of the knees was assessed in September 1997. On VA examination in May 2010, the Veteran endorsed pain of 5/10, with flare ups to a 6/10 after walking. He noted that he had undergone physical therapy and injections with minimal relief. The examiner indicated that the Veteran had full range of motion of the knees without pain. There was no increased pain or decreased range of motion with repetitive motion. No crepitus was noted. There was no tenderness to palpation and there was no instability. X-ray examination revealed mild degenerative changes. The examiner stated that although the patient had the examination described, it was feasible that he could have pain that could further limit function, particularly after he had been on his feet all day. He further stated that It was not feasible to attempt to express this in terms of additional limitation of motion as such matters could not be determined with any degree of medical certainty. Unfortunately, because the examiner stated that it was possible that additional loss might occur but did not provide an estimate of the extent of such limitation, the examination report is inadequate for the purpose of evaluating the Veteran's bilateral knee disability. See Barr. In light of the above discussion, the Board has determined that additional development is necessary. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a corrective notice addressing the cervical spine disability claim under 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); and Kent v. Nicholson, 20 Vet. App. 1 (2006). Provide an explanation as to why each of the claims were previously denied. The notice should also explain the terms "new" and "material;" and explain the types of evidence that would be considered new and material. The notice should describe what evidence would be necessary to satisfy the element of the underlying claims which were found insufficient in the prior decisions; degree of the disability; and effective date if service connection is granted. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; Kent, Dingess/Hartman. 2. Schedule the Veteran for a VA examination to determine the etiology of any currently present low back and bilateral foot disabilities, and to address the current severity of his bilateral knee disability. The claims folder should be forwarded to the examiner for review. All indicated studies should be performed, and their results reported. The examiner should be directed to elicit a complete history from the Veteran. Low Back and Bilateral Feet Following examination, interview of the Veteran, and review of the claims file, the examiner should identify all currently present disabilities of the low back and feet. The examiner should provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that any currently present low back or foot disability is related to any disease or injury in service. With respect to the Veteran's pes planus, the examiner should also provide an opinion regarding whether there is clear and unmistakable evidence that the Veteran's pre-existing pes planus DID NOT increase in severity beyond the natural progression of the disability during active duty (i.e. the disorder was not aggravated by service). In providing answers to the above inquiry, the examiner should be advised that aggravation means a chronic worsening of the underlying condition, as opposed to a temporary flare-up of symptoms. A discussion of the complete rationale for all opinions expressed should be included in the examination report. Bilateral Knees The examiner should comment on any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology, e.g., muscle spasm, and is evidenced by his visible behavior, e.g., facial expression or wincing, on pressure or manipulation. The examiner's report should include a description of the above factors that pertain to functional loss due to the bilateral knee disability that develops on repetitive use or during flare-up. In particular, the examiner should indicate the point during range of motion testing that motion is limited by pain. Consideration should be given to any loss due to reduced or excessive excursion, or due to decreased strength, speed, or endurance, as well as any functional loss due to absence of necessary structures, deformity, adhesion, or defective innervation. The examiner's inquiry in this regard should not be limited to muscles or nerves, but should include all structures pertinent to movement of the joint. If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 , 3.655. 4. Readjudicate the Veteran's claims, with application of all appropriate laws, regulations, and case law , and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. 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). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs