Citation Nr: 1318052	
Decision Date: 06/04/13    Archive Date: 06/11/13

DOCKET NO.  07-12 808	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUES

1.  Entitlement to service connection for a right hip disorder.

2.  Entitlement to service connection for a bilateral foot disorder.

3.  Entitlement to service connection for a bilateral hearing loss disability.

4.  Entitlement to service connection for tinnitus.  

5.  Entitlement to service connection for sinusitis.

6.  Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a left hand disorder, including left index and middle fingers (to exclude a fracture of the left fourth metacarpal), and if so, whether service connection is warranted.

7.  Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a left knee disorder, and if so, whether service connection is warranted.  

8.  Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a lumbar spine disorder, to include as secondary to a knee disorder, and if so, whether service connection is warranted.  

9.  Entitlement to an initial evaluation in excess of 10 percent for a right inguinal scar.

10.  Entitlement to a compensable evaluation for an ilio-inguinal nerve injury.

11.  Entitlement to a compensable evaluation for residuals of a fracture of the left fourth metacarpal (hereinafter 'left ring finger disability'). 

12.  Entitlement to an effective date prior to April 7, 2006 for the award of service connection for posttraumatic stress disorder (PTSD), to include whether clear and unmistakable error existed in the RO's failure to adjudicate a claim for entitlement to service connection for a nervous condition in a July 1959 rating decision.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

H. Bunker, Associate Counsel



INTRODUCTION

The Veteran served on active duty from August 1950 to July 1955.  He is the recipient of the Combat Infantryman Badge.

This case comes before the Board of Veterans' Appeals (Board) on appeal from December 2005 and November 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona.

The Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO in Phoenix, Arizona in December 2009.  The Veteran also testified at a Board central office hearing in Washington, DC in March 2013.  These transcripts have been associated with the file.

Also in April 2013, the Veteran submitted additional evidence.  However, the Veteran and his representative waived RO review of this evidence and therefore, Board adjudication of the current appeal may go forward without remanding the appeal for a supplemental statement of the case.  See 38 C.F.R. § 20.1304(c) (2012).

The Board notes that during the March 2013 Board hearing the issues were raised for entitlement to service connection for erectile dysfunction, to include as secondary to an ilio-inguinal nerve disorder, and gastroesophageal reflux disease (GERD), secondary to non-steroidal anti-inflammatories taken for his service-connected disabilities.  However, the issues of erectile dysfunction and GERD have never been adjudicated by the RO, and therefore, are REFERRED to the RO for proper adjudication.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The issues of entitlement to service connection for a right hip disorder, bilateral foot disorder, sinusitis, increased rating for the left ring finger disability, and the reopened issues of entitlement to service connection for left hand disorder, to include the left index and middle fingers, left knee, and lumbar spine disorders and 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's current bilateral hearing loss disability is not shown to be due to a disease or injury in service or to any incident of his military career. 

2.  The Veteran's tinnitus is not shown to be due to a disease or injury in service or to any incident of his military career.

3.  The Veteran's claim of entitlement to service connection for a left hand disorder was denied in a September 2004 rating decision; the Veteran did not perfect an appeal.

4.  Evidence received since the September 2004 rating decision is not cumulative of the evidence of record at the time of the September 2004 RO denial and relates to an unestablished fact necessary to substantiate the claim of service connection for a left hand disorder, to include the left index and middle fingers; it also raises a reasonable possibility of substantiating the Veteran's claim of service connection.

5.  The Veteran's claim of entitlement to service connection for a left knee disorder was denied in a November 1996 rating decision; the Veteran did not perfect an appeal.

6.  Evidence associated with the claims file since November 1996 is new and material and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a left knee disorder.

7.  The Veteran's claim of entitlement to service connection for a lumbar spine disorder was denied in an August 2003 rating decision; the Veteran did not perfect an appeal.

8.  Evidence associated with the claims file since August 2003 is new and material and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a lumbar spine disorder.

9.  The Veteran's right inguinal scar measures approximately .2 centimeters by 8 centimeters.  There is some evidence of tenderness, but no evidence of adherence to the underlying tissue, ulceration, breakdown of the skin or additional functional limitation resulting from the residual scar.

10.  As of November 29, 2004 the Veteran's ilio-inguinal nerve injury has been manifested by complaints of constant pain. 

11.  In May 1959 the Veteran filed an Application for Outpatient Treatment, VA Form 10-2827, for a "nervous condition."

12.  In May 1959 the Veteran was not service-connected for a nervous condition, or any psychiatric condition.

13.  Based on the evidence of record at the time of the July 1959 rating decision, it was not error for the RO not to have adjudicated the question of service connection for a psychiatric disorder.

14.  On April 7, 2006 the Veteran filed a claim for PTSD.

15.  Prior to receipt of the claim on April 7, 2006 there were no pending requests for service connection for a psychiatric disorder that remained unadjudicated.


CONCLUSIONS OF LAW

1.  The Veteran's claimed bilateral hearing loss disability was not incurred in or aggravated by military service, nor may hearing loss be presumed to be of service onset.  38 U.S.C.A. §§ 1110, 1112, 1113, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385 (2012).

2.  The Veteran's claimed tinnitus was not incurred in or aggravated by military service.  38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012).

3.  Evidence received since the September 2004 rating decision that denied service connection for a left hand disorder, which was the last final denial with respect to this issue, is new and material; the claim is reopened.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156, 20.1103 (2012).

4.  Evidence received since the November 1996 rating decision that denied service connection for a left knee disorder, which was the last final denial with respect to this issue, is new and material; the claim is reopened.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156, 20.1103 (2012).

5.  Evidence received since the August 2003 rating decision that denied service connection for a lumbar spine disorder, which was the last final denial with respect to this issue, is new and material; the claim is reopened.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156, 20.1103 (2012).

6.  The criteria for an evaluation in excess of 10 percent for a right inguinal scar have not been met at any point during the appeal period.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Code 7804 (prior to October 23, 2008).

7.  As of November 29, 2004 the criteria for a 10 percent evaluation, but no higher, have been met for the Veteran's ilio-inguinal nerve disability.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8530 (2012).

8.  Clear and unmistakable error was not committed by the RO in regard to the failure to adjudicate a claim for entitlement to service connection for a psychiatric disorder based on the May 1959 Application for Outpatient Treatment; and thus, the criteria for an effective date prior to April 7, 2006, for the award of service connection for PTSD have not been met.  38 U.S.C.A. §§ 5109A, 5110 (West 2002); 38 C.F.R. § 3.105(a) (2012); 38 C.F.R. §§ 3.150, 3.151, 3.155, 3.157, 3.160, 3.400 (1959).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the Veteran's claims folder.  Although the Board has an obligation to review the entire record, the Board does not have to discuss each piece of evidence reviewed.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). 

It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim.  Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012).

The Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA 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. 38 C.F.R. § 3.159(b).  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims 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, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.

The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his case, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004).  RO letters dated in December 2004, May 2005, and October 2005 informed the Veteran of three of the five elements required by 38 C.F.R. § 3.159(b), as stated above.  The letters do not provide the criteria for assigning effective dates and disability ratings, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006).  However, the Board finds no prejudice to the Veteran in proceeding with the present decision.  Since the claims for service connection for bilateral hearing loss and tinnitus are being denied on the merits, no effective date will be assigned, so there can be no possibility of any prejudice to the Veteran.  With respect to the increased rating claims for right inguinal hernia scar and left fourth metacarpal fracture residuals, these claims are denied, as well, and no new effective date will be assigned.  A higher 10 percent rating is assigned for the ilio-inguinal nerve disability; but the same effective date that was assigned by the RO is used for this determination.  As no new effective dates are assigned for the disability rating claims, no prejudiced to the Veteran is shown with proceeding with this adjudication.

The Veteran also has neither alleged nor proven that prejudice resulted from lack of proper VCAA notice, and therefore, the Board determines that none resulted.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009).  

With respect to claims based on CUE, the Board notes that the provisions of the VCAA are not applicable.  See Parker v. Principi, 15 Vet. App. 407, 412 (2002) (citing Livesay v. Principi, 15 Vet. App. 165 (2001)).  In Livesay, the Court noted that allegations of CUE are not conventional appeals and are fundamentally different from other kinds of action in the VA adjudicative process.  Because the Veteran is not pursuing a claim for benefits, but rather is collaterally attacking a prior final decision, the duties to notify and assist as set forth in the VCAA are not applicable.  Id.

The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005).

The Veteran's service treatment records and VA treatment records are in the file.  The VA has also obtained private treatment records and associated them with the claims file.  The Veteran has not indicated that there are any additional outstanding records to be obtained.  The duty to assist with obtaining medical records has been satisfied.

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law.  The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), 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.

The Veteran was afforded a VA medical examination in May 2006 for his bilateral hearing loss disability and tinnitus.  This opinion was rendered by a medical professional following a thorough examination and interview of the Veteran and review of the claims file.  The examiner obtained an accurate history.  The examiner provided a detailed conclusion for the conclusions that were reached.  Therefore, the Board finds that the examination is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  

The duty to assist also includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran.  Green v. Derwinski, 1 Vet. App. 121 (1991).  In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a).

The Veteran was afforded a VA medical examination in April 2011 to determine the severity of his inguinal scar and ilio-inguinal nerve disability.  These opinions were rendered by a medical professional following a thorough examination and interview of the Veteran and review of the claims file.  The examiner obtained an accurate history.  The examiner provided a detailed explanation for the opinions that were reached.  

There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disorders since he was last examined.  38 C.F.R. § 3.327(a).  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted.  VAOPGCPREC 11-95.  Therefore, the Board finds that the examination is adequate.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

The Veteran has been afforded hearings before a Veterans Law Judge (VLJ) and an RO Decision Review Officer (DRO) in which he presented oral argument in support of his claims.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the VLJ or DRO who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.   

Here, during the hearings, the VLJ and DRO did not note the bases of the prior determinations or the elements that were lacking to substantiate the claims.  The VLJ and DRO asked specific questions, however, directed at identifying the criteria for service connection and increased ratings.  The VLJ and DRO also sought to identify any pertinent evidence not currently associated with the claims.  The Veteran also volunteered his treatment history and symptoms since service.  Accordingly, the Veteran is not shown to be prejudiced by the conduct of either hearing.  

Also, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board or DRO hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims.  As such, the Board finds that, consistent with Bryant, the VLJ and DRO complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). 

The duty to assist has therefore been satisfied and there is no reasonable possibility that any further assistance to the appellant by VA would be capable of substantiating his claim.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  Because VA's duties to notify and assist have been met, there is no prejudice to the appellant in adjudicating this appeal.

In light of the foregoing, all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.

Service Connection

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service.  38 U.S.C.A. § 1110.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38  C.F.R. § 3.303(b).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).

In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).

Bilateral Hearing Loss Disability and Tinnitus

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. 
§ 3.303(a).  Service connection can be demonstrated for a disease diagnosed after service 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); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) (holding that proof of direct service connection may entail proof that exposure during service caused the malady that appeared many years later); Cosman v. Principi, 3 Vet. App. 503, 505 (1992) (holding that service connection can still be established even when a Veteran did not have a particular condition diagnosed during service or for many years thereafter).  

In order to establish service connection, the evidence must generally 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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); see generally 38 C.F.R. § 3.303.  

Alternatively, under 38 C.F.R. § 3.303(b), the second and third Shedden/Caluza elements can be established through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Barr, 21 Vet. App. at 307.  Symptoms, and not treatment, are the essence of any evidence of continuity of symptomatology

The U.S. Court of Appeals for the Federal Circuit has recently held that for purposes of 3.303(b), where the veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013), affirming Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). [emphasis added].  For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing inservice incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d).   

Organic diseases of the nervous system (which includes sensorineural hearing loss) are listed as chronic conditions under 38 C.F.R. § 3.309(a).  Therefore, any sensorineural hearing loss for the Veteran can be granted service connection on the basis of continued symptomatology since service under 38 C.F.R. § 3.303(b).  In addition, sensorineural hearing loss may be presumed to have been incurred in service if it became manifest to a degree of 10 percent or more within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.  Tinnitus is not considered an organic disease of the nervous system and is therefore not entitled to presumptive service connection under 38 C.F.R. §§ 3.307, 3.309; nor can service connection be established for tinnitus by showing continued symptomatology since service.

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49   (1990).  In this regard, the Board must assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991).  While the Board is not free to ignore the opinion of a treating physician, it is free to discount the credibility of that physician's statement.  See Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993); Sanden  v. Derwinski, 2 Vet. App. 97, 101 (1992).

For purposes of a hearing loss claim, impaired hearing will be considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, 4,000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 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 report of a May 2006 VA audiology examination indicates the Veteran currently has a bilateral hearing loss disability for VA purposes.  See 38 C.F.R. § 3.385. 

In the case of a Veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, the Secretary of VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of in-service occurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions or hardships of such service, notwithstanding the fact that there is no official record of such occurrence or aggravation in such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d) (2012).  Accordingly, as the Veteran is in receipt of the Combat Infantryman Badge, the Board will concede that the Veteran was exposed to loud noises while in-service.  However, there must still be a nexus between the claimed in-service disease or injury and the current disability.  Hickson, supra.

The Veteran contends that he suffers from hearing loss and tinnitus as a result of noise exposure in service to include from 155 Howitzers.  See e.g., March 2013 Board hearing transcript.  For these reasons discussed below, the Board finds that service connection is not warranted.

The Board notes that the Veteran was afforded a medical examination at entrance to, and separation from, service in August 1950 and July 1955, respectively.  At his entrance examination there were no defects noted and the Veteran's hearing was reported as 15/15 on a whisper test.  On separation from service the Veteran's hearing was again noted to be 15/15 and he was found to be qualified for separation from service.  Although the Veteran was treated for numerous health complaints in service, he did not report that he was suffering from hearing loss or tinnitus on any occasion.  See e.g., August 1954 record noting complaints of left knee and April 1955 record noting sinusitis.

The lack of complaints, treatment, or diagnoses of a bilateral hearing loss disability or tinnitus weighs against the Veteran's claim that he suffered from these disabilities in service. 

The Board acknowledges that even if a chronic condition is not shown during service, service connection may be established under 38 C.F.R. § 3.303(b), for chronic diseases such as hearing loss, or by evidence of continuity of symptomatology or under 38 C.F.R. § 3.303(d) if the evidence shows a disease first diagnosed after service was incurred in service.

Following separation from service the Veteran filed numerous claims for disability compensation; however he did not reference hearing loss or tinnitus.  In March 1958 the Veteran filed an "Application for Compensation and Pension" for a hand and leg condition.  In June 1959 the Veteran submitted a statement requesting that his service connected leg and hand conditions be reviewed for an increase in severity.

In a January 1968 "Application for Compensation or Pension" the Veteran requested service connection for hepatitis and a left knee condition.  In a May 1968 statement the Veteran requested that the RO reopen his claim for service connection for his bilateral knees, left leg, and right foot.  He also stated he was filing for non-service-connected pension benefits.  He stated he had hemorrhaging in both eyes.

In January 1983 the Veteran submitted a statement to consider it "as a claim for service connection" for a knee condition.  In February 1983 the Veteran submitted a statement to reopen his claim of entitlement to service connection for a bilateral leg injury.  In July 1983 the Veteran filed a claim for a cut nerve during his hernia surgery and an increased rating claim for his left hand injury.  The fact that the Veteran filed numerous claims following separation from service and did not reference hearing loss or tinnitus weighs against his claims that these disabilities began in service and continued on thereafter.

In a May 1968 examination the Veteran did not report hearing loss or tinnitus.  At his October 1983 VA examination the Veteran reported inguinal nerve pain, a lower back injury, a left leg and ankle injury from service, a left hand injury from service, a left knee injury from service, and loss of hearing due to a post-service welding accident.  This evidence also weighs against the Veteran's contentions that he experienced hearing loss and tinnitus symptoms in service.

The first post-service complaint of hearing loss disability or tinnitus comes from an October 1983 VA examination report, approximately 28 years after separation from service.  The Board may, and will, consider in its assessment of a service connection the passage of a lengthy period of time wherein the veteran has not complained of the malady at issue.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Feb. Cir. 2002) (en banc).

In an October 1983 VA examination report the Veteran reported hearing loss in connection to a left ear injury which happened during a welding accident post service.  In a treatment record from May 1989 the Veteran was seen for a cyst of the left ear.  He did not report hearing loss or tinnitus at this time.  

The Veteran was diagnosed with tinnitus in April 2003.  In an April 2003 VA treatment record the Veteran reported sudden onset of hearing loss in 1969 during a welding accident when a piece of hot metal flew into his ear and burned the tympanic membrane.  He also reported noise exposure in the military as well as post service in the 1960's while working as a welder and from 1976-1979 while working in power plants.  He was diagnosed with sensory hearing loss.  

The Veteran was seen for follow up of pulsatile tinnitus in October 2003.  In a November 2005 VA treatment record the Veteran had a known history of tinnitus.  The Veteran was diagnosed with mild to severe sensory hearing loss.  It was recommended he use binaural amplification devices.  At his May 2006 VA examination the Veteran reported unilateral tinnitus in the left ear in 2003.  He denied tinnitus at this examination.

The May 2006 examiner noted the Veteran performed many parachute jumps in service and also served in the field artillery.  Post service he drove semi trucks.  The examiner noted the Veteran was seen in 2003 for a sudden hearing loss in the left ear.  The Veteran also reported a welding accident in 1969 which burned his left ear drum.  He also reported noise exposure from 1976-1979 while working at a power plant.  

The examiner performed an audiogram and opined it was not likely that the Veteran's current hearing loss was incurred in service.  She opined it was more than likely that the hearing loss was the result of post service injuries and noise exposure discussed above.  There was no opinion regarding the Veteran's tinnitus as he denied it at this examination.

At his December 2009 DRO hearing the Veteran reported his noise exposure included 155 Howitzers and he again referenced that he was in receipt of the Combat Infantryman Badge.  He also testified that he had occasional tinnitus.  He testified at the March 2013 Board hearing that he first noticed buzzing and ringing in his ears in service, and that his hearing loss had progressed over time.

In light of all the evidence of record, the Board finds the evidence weighs against the Veteran's assertions that his hearing loss and tinnitus are related to service.  The evidence of record does not link the claimed noise exposure during active duty and his current bilateral hearing loss disability and tinnitus.

The Board acknowledges that the Veteran is competent to report that he has continued to experience hearing loss and buzzing in his ears since service.  See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009).  The Veteran is also competent to report that he was exposed to acoustic trauma in service.  See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge).  Competent testimony is limited to that which the witness has actually observed and is within the realm of his personal knowledge; such knowledge comes to a witness through use of his senses-that which is heard, felt, seen, smelled, or tasted.  Layno v. Brown, 6 Vet. App. 465 (1994).  

It is within the Veteran's realm of personal knowledge whether he had exposure to loud noises in service, and has continued to experience hearing loss and buzzing in his ears since that time.  The Veteran served in the Army during the Korean War and received the Combat Infantryman Badge.  Thus, as noted above, it is conceded that he was exposed to acoustic trauma in service.  However, the Board finds that the Veteran's statements are not credible with respect to the onset and continuity of his hearing loss and tinnitus symptoms.  The Veteran's assertions of onset of hearing loss and tinnitus since service are contradictory to other evidence in the file, which shows that he did not start complaining of hearing loss until a post-service welding injury to the ear in 1969.

The most credible evidence of record suggests that the Veteran developed a bilateral hearing loss disability and tinnitus after separation from service.  The Veteran's first reference to hearing loss comes in 1983 when he recounts a previous welding injury where his left eardrum was burned.  Also in an April 2003 audiology record the Veteran reported that his hearing loss began in 1969 during the welding accident.  As discussed, the Veteran filed numerous claims for disabilities, but did not reference hearing loss or tinnitus until December 2004, almost 50 years after separation from service.  There is also no competent evidence linking any current hearing loss to service.  

Even if the Veteran's statements regarding the onset of the hearing loss were credible, it does not follow that any present hearing loss is necessarily related to any demonstrated continuous symptomatology.  While the Veteran is competent to state that he has suffered from symptomatology in his ears since service, he is not competent to determine the underlying cause of the symptoms, i.e., hearing loss disability, etc. 

The Board acknowledges that the Veteran believes he has a bilateral hearing loss disability and tinnitus as a result of noise exposure from service.  Although lay persons such as the Veteran are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the issue of diagnosing the etiology of a bilateral hearing loss disability or tinnitus, this falls outside the realm of common knowledge of a lay person.  The Veteran's assertion has been investigated by competent medical opinion, and found to be without merit.  See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).

The Board also finds it significant that a VA examiner in May 2006 found that after reviewing the claims file and pertinent medical history that the Veteran's hearing loss and tinnitus were not related to acoustic trauma in military service, but rather more likely than not due to post-service injury and noise exposure.  The Veteran did not report tinnitus on the examination.  The rationale for the opinion was that by history the Veteran had not reported hearing loss or tinnitus in service or in numerous previously filed claims.  He was seen in 2003 for sudden hearing loss in the left ear, and he reported a welding accident in 1969 in which he burned his left ear drum.  He also had noise exposure from 1976 to 1979 working in a power plant.  The probative value of the May 2006 examiner's opinion is high as the examiner was fully informed of the Veteran's medical history, provided a fully articulated rationale, and the opinion was supported by a reasoned analysis.   See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  

Further, as there is no evidence of record of a bilateral hearing loss disability within one year of service discharge, this does not warrant the presumption of service connection as its onset was beyond the presumptive period.  38 C.F.R. §§ 3.307, 3.309(a).

In March 2013 the Veteran also submitted an article on the use of whisper tests which found that they may not present the most accurate means of interpreting hearing perception.  The Board has considered this evidence as the Veteran was provided whisper tests at entrance to, and separation from, service.  Ultimately, the Board assigns this treatise evidence less probative value than other evidence offered, such as the May 2006 VA examiner's opinion and the Veteran's failure to file a claim for a hearing loss disability, although numerous other claims were filed.  While informative, the evidence provided in the article is general in nature and no examiner has specifically related this information to the Veteran.  See Sacks v. West, 11 Vet. App. 314 (1998).  Therefore, the Board assigns more weight to the VA medical opinion noted above, which considered the facts and circumstances of the Veteran's particular history.  

Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for a bilateral hearing loss disability and tinnitus and the benefit of the doubt rule does not apply.  See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet.  App. 49, 56 (1990).

New and Material

Previously denied claims may be reopened with the submission of new and material evidence.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.156, 20.1105 (2012).  38 C.F.R. § 3.156(a) defines "new and material evidence."  "[N]ew evidence" means evidence not previously submitted to agency decision-makers, and "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.  The 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.  The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is 'low.'  Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).

When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed.  Justus v. Principi, 3 Vet. App. 510 (1992).

Left Hand Disorder 

In September 2004, the RO denied the Veteran's claim for service connection for a left hand disorder.  At that time the Veteran was apparently basing his impairment in his left hand, to include his left index and ring fingers, on a surgery on his left shoulder that was performed at the VAMC in Cincinnati in December 2002.  He also referenced the injury in service that led to his already service-connected left ring finger disability; however, it is not clear if he was claiming a new disability in the left hand related to his injury or an increased rating for his already service-connected left ring finger disability.  

The RO denied the service connection claim for disability of the left index and middle fingers, based on the lack of evidence establishing the Veteran had any disability of the left index and middle fingers that occurred in or was a result of military service.  The RO considered the Veteran's service treatment records, VA treatment records, and June 2004 VA examination report in making this decision.  On the June 2004 VA examination report, the examiner determined that the Veteran had arthritis over the proximal interphalangeal and distal interphalangeal joints of his index and long fingers but that these were not related to his shoulder surgery in December 2002.  The Veteran was notified of the September 2004 decision and did not perfect an appeal of the issue.  

The Board finds it significant to note, however, that the Veteran submitted statements within the one-year time frame for an appeal regarding his left hand claim.  A November 2004 report of contact notes that the Veteran was still claiming service connection for a left hand disability.  He also submitted another statement in November 2004 indicating that he wanted to "reopen" his claim for service connection for the left hand condition.  He made additional assertions concerning his left hand on a statement in December 2004 describing the injury in service and explaining the current impairment in his two fingers he believed were related to this injury.  A separate statement in December 2004 from the Veteran notes that he had a current claim pending for a left hand disability.  While it appears that the Veteran is interchangeably referring to his already service-connected left ring finger disability and a service connection claim for a left hand disability that includes his left index and middle fingers, it also appears that based on his statements in November and December 2004, the Veteran intended to continue with his claim for the left hand disability that was denied in September 2004.  

Nonetheless, VA regulations require that a notice of disagreement be filed in order to appeal a decision that has been denied.  38 C.F.R. § 20.201 (a notice of disagreement is a written communication from a claimant expressing dissatisfaction or disagreement with an adjudicative determination by the RO; special wording is not required but must be in terms which can be reasonably construed as disagreement with the determination and a desire for appellate review).  The Veteran demonstrated that he was aware of this procedure, as he had filed notices of disagreement with respect to other claims he had filed over the years since the 1980s.  As he did not file a notice of disagreement with the September 2004 rating decision within the required one-year period, notwithstanding his statements continuing to assert entitlement to service connection for the left hand disability, the September 2004 rating decision was never properly appealed.

Further, new and material evidence was not received within one year of that decision.  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 without consideration in that decision in accordance with the provisions of § 20.1304(b)(1)), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  38 C.F.R. § 3.156(b).  

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has found that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the relevant period to determine whether they contain new and material evidence relevant to a pending claim, even if the new submission may support a new claim.  Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011).  Significantly, absent any indication in the record that this analysis occurred, the Federal Circuit explained that it was particularly reluctant to presume that the VA considered, but rejected, the possibility that a submission contained new and material evidence relating to an earlier claim.  Id. at 1368.  The Federal Circuit noted the Board's statutory obligation to provide a written statement of its findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented on the record.  Id.  

A February 2005 VA examination report was provided, which noted that the Veteran's left index finger degenerative joint disease was not related to service.  It was also noted that he had an incidental finding of peripheral neuropathy, which was affecting the left hand, but this also was not related to service including his left hand injury in service.  While this evidence is new, it does not relate to an unestablished fact necessary to substantiate the claim.  It had already been shown by the evidence at the time of the previous rating decision in September 2004 that the Veteran had an in-service injury to the left hand and current disability in the left index and middle fingers.  The new evidence provided was an opinion that the current disability in the left index and middle fingers was not related to service.  This does not raise a reasonable possibility of substantiating the claim, as it is an unfavorable opinion.  

Thus, the September 2004 decision became final.  38 U.S.C.A. § 7105(a) (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012).

The evidence received following the September 2004 RO denial includes private treatment records, VA treatment records, statements and testimony from the Veteran, and VA examination reports in February 2005 and April 2011.  The Veteran's representative also submitted an article on Schumann's hand injury, which studied a pianist who suffered progressive paralysis of his hand. 

The private treatment records do not show that the Veteran currently has a left hand disorder that is related to service, to include as a residual of his left fourth metacarpal fracture.  The VA treatment records show that the Veteran has arthrosis in the left finger joints.  The February 2005 VA examiner's opinion was that while the Veteran had degenerative joint disease of the left index finger, it was not caused by or the result of the in-service injury.  He reported no known nexus to relate the conditions.  The April 2011 VA examiner also noted the Veteran had degenerative changes to digits of the left hand, however he went on to state these were not residuals of the Veteran's in-service injury.

The Veteran and his representative testified at the Board hearing that the Veteran's injury to his left fourth finger in service could have spread to other parts of his fingers and referenced the article he submitted on Schumann's hand injury, which noted a progressive paralysis suffered in this other individual's hand. 

As noted, the February 2005 examination report, in addition to the other medical evidence described above was not of record at the time of the September 2004 rating decision, but is not material because it still does not suggest or show the Veteran suffers from a left hand disorder, other than residuals of a left fourth metacarpal fracture, from service.  The additional medical evidence actually shows the converse.

However, the Veteran's representative's assertion that the Veteran's original injury in service could have spread to the other parts of his hand and the article submitted regarding another case where an individual suffered from progressive paralysis in his hand are new.  This is a new theory of entitlement to service connection.  This, along with the other evidence of record including the February 2005 VA examination report, which noted that the Veteran had a peripheral neuropathy component to his left hand disability, relates to an unestablished fact necessary to substantiate the claim, namely a possible neurological disorder related to the in-service injury to the hand.  This evidence also raises a reasonable possibility of substantiating the claim.  See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010) (stating that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim is a component of the question of what is new and material evidence, rather than a separate determination).  Additionally, the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Shade, 24 Vet. App. at 117.  Reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim.  Id. 
  
The Board thus finds that new and material evidence has been received to reopen the claim of service connection for a left hand disorder to include the left index and middle fingers, and to exclude a fracture of the left fourth metacarpal.  Therefore, the Veteran's petition to reopen a claim of entitlement to service connection is allowed.  See 38 C.F.R. § 3.156(a). 

Left Knee and Lumbar Spine Disorders

The Veteran filed a service connection claim for a left knee disorder in 1968.  The RO denied service connection for a left knee scar in August 1968.  The Veteran did not appeal this decision and it is final.  38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103.

Although the Veteran's representative testified at the March 2013 Board hearing that the Veteran had a previously pending left knee claim that was never adjudicated, the Board's review of the claims file is not consistent with this assertion.  

The appellant brought another claim for service connection for a left knee disorder in October 1996 and for a lumbar spine disorder in March 2003.  The left knee disorder was denied in a November 1996 rating decision and the lumbar spine disorder was denied in an August 2003 rating decision.  The August 2003 decision also confirmed the denial of service connection for scar on the left knee.  The Veteran was notified of these decisions in the same month the rating decisions were issued.  The Veteran did not appeal these decisions and they are final, as well.  Id. 

Further, new and material evidence was not received within one year of those decisions.  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 without consideration in that decision in accordance with the provisions of § 20.1304(b)(1)), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  38 C.F.R. § 3.156(b).  

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has found that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the relevant period to determine whether they contain new and material evidence relevant to a pending claim, even if the new submission may support a new claim.  Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011).  Significantly, absent any indication in the record that this analysis occurred, the Federal Circuit explained that it was particularly reluctant to presume that the VA considered, but rejected, the possibility that a submission contained new and material evidence relating to an earlier claim.  Id. at 1368.  The Federal Circuit noted the Board's statutory obligation to provide a written statement of its findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented on the record.  Id.  

There is no pertinent medical evidence filed within one year after the October 1996 and August 2003 rating decisions.  The appellant filed his petition to reopen his claims in December 2004.  

At the time of the November 1996 and August 2003 denials, the evidence of record included VA treatment records, service treatment records, and the Veteran's personal statements.  The RO denied the claims due to a lack of a nexus between the in-service injuries or disease and the Veteran's claimed disorders.  

The evidence received since the November 1996 and August 2003 rating decisions includes private treatment records, VA examination reports, and the Veteran's testimony.  Significantly, a February 2005 VA medical opinion stated that the Veteran's left knee disorder may be secondary to an injury from service.  A March 2005 statement from the Veteran's private physician stated that the Veteran's left knee disorder was related to his multiple jumps as a parachutist in-service.  The Veteran also testified at his March 2013 Board hearing as to what symptoms he had been experiencing since his separation from service and that he believed his lumbar spine disorder was secondary to his knee disorder.  This evidence is new, as it was not previously of record at the time of the November 1996 and August 2003 rating decisions.  It is also material in that it helps to support the Veteran's claim that his claimed disorders are related to service.  Therefore, the claims are reopened.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).


Increased Rating

Disability ratings are based on the average impairment of earning capacity resulting from a disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2011).  An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10.  Separate diagnostic codes identify the various disabilities.  Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7.  Otherwise, the lower rating will be assigned.  Id.  

In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present.  See 38 C.F.R. §§ 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 

Although the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established, such as it has been for the ilio-inguinal nerve disability, and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  In a claim for a greater original rating after an initial award of service connection, such as the initial rating for inguinal scar, all of the evidence submitted in support of the veteran's claim is to be considered.  See Fenderson v. West, 12 Vet. App. 119 (1999).  The United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.  However, as discussed below, in this case, the record reflects that the Veteran's ilio-inguinal nerve disability and inguinal scar have remained constant with respect to the applicable schedular criteria.

The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C.A. § 5107(a).  In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant.  Id.  

The Veteran contends that he should be awarded higher evaluations throughout the appeal period for his service-connected inguinal scar and ilio-inguinal nerve disability.  For the reasons discussed below, the Board finds that no additional rating is warranted for the Veteran's scar; however a 10 percent evaluation is warranted for the Veteran's ilio-inguinal nerve disability as of November 29, 2004.

Right Inguinal Scar and Ilio-Inguinal Nerve Disability 

The Veteran was originally granted service connection for an ilio-inguinal nerve disability in November 1983 under the provisions of 38 U.S.C. § 351 (now 38 U.S.C.A. § 1151) for disability determined to be the result of surgical treatment.  A 0 percent disability rating was assigned.  The Veteran appealed this rating to the Board, which confirmed the 0 percent rating in a June 1985 decision.  

The Veteran filed an increased rating claim for his ilio-inguinal nerve disability in November 2004.  In December 2005, the RO granted service connection for right inguinal scar assigning a 10 percent rating, effective November 29, 2004; but denied entitlement to a rating higher than 0 percent for the right ilio-inguinal nerve disability.  The Veteran appealed this action.

The Veteran's scar disability has been rated as 10 percent disabling under Diagnostic Code 7804 for superficial, painful scars.  Ten percent is the maximum rating available under this Diagnostic Code.  

Initially, the Board notes that 38 C.F.R. § 4.118 was amended during the pendency of this appeal.  73 Fed. Reg. 54,708- 54,712 (October 23, 2008).  However, the Board observes the amended criteria are only applicable to "applications for benefits received by VA on or after October 23, 2008."  Id. at 54,708.  The Veteran also has not requested to be rated under the revised scar regulations.  Thus, there is no impact on the Veteran's current claim for benefits, which was received by VA in November 2004.  

The Veteran's ilio-inguinal nerve disability has been assigned a zero percent disability rating.  Mild or moderate paralysis of the ilio-inguinal nerve is required for a noncompensable evaluation.  Severe to complete paralysis of the ilio-inguinal nerve is required for a 10 percent evaluation.  38 C.F.R. § 4.124a, Diagnostic Code 8530.

In a February 2005 VA examination the Veteran reported pain in his right testicle, which radiated to his penis.  He also reported fibrosis lesions on the penile surface.  He reported pain with any activity that involved movement of his groin or urogenital area.  

The examiner noted a right inguinal scar from the surgical repair that was 5 centimeters.  It was tender to the touch, but otherwise not abnormal to palpation or inspection.  There was evidence of fibrosis along the lateral aspects of the penis as demonstrated by plaque-like lesions.  The right testicle was also tender.  The examiner opined the Veteran had sensory functional impairment without muscle wasting or motor deficits.

At his December 2009 DRO hearing the Veteran reported constant pain in his right testicle with additional growths, previously identified as fibrosis.  He also testified that his scar was tender.  In a February 2012 statement the Veteran reported that he had right groin pain.

At his April 2011 VA examination the Veteran reported pain in his right testicle which radiated to his penis.  He had decreased sensation in his lateral thigh, upper posterior thigh, groin, and plantar foot.  The examiner noted the entire groin area/suprapubic region was decreased to monofilament.  The Veteran's nerve disability caused pain with any activity that involved movement of his groin or urogenital area, including sitting or driving.

His scar was measured as .2 centimeters by 8 centimeters.  It was painful and superficial, with no signs of skin breakdown, inflammation, edema, or keloid formation.  The examiner noted the scar was sensitive and affected his activities of daily living.  

The Veteran's right inguinal scar is superficial and painful to the touch.  Accordingly, the current 10 percent evaluation is appropriate for the scar.  This is the maximum evaluation available.  

In reviewing the evidence the Board finds that the Veteran is entitled to the next higher evaluation of 10 percent, effective November 29, 2004 (the date his claim was received), for his ilio-inguinal nerve disability.  The Veteran has reported constant pain in his right testicle and at his most recent VA examination the examiner found decreased sensation in his lateral thigh, upper posterior thigh, groin, and plantar foot and the entire groin area/suprapubic region was decreased to monofilament.  The Veteran's nerve disability caused pain with any activity that involved movement of his groin or urogenital area, including sitting or driving.  This is the maximum award available under Diagnostic Code 8530.

The Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the Veteran's disabilities in his favor.  The Board concludes that the objective medical evidence and the Veteran's statements regarding his symptomatology show a 10 percent evaluation is appropriate for his right inguinal scar and ilio-inguinal nerve disability.  See 38 C.F.R. § 4.7.

The Board has considered other potentially applicable Diagnostic Codes.  The Veteran's representative argued at the Board hearing that the muscle codes should be considered in rating the Veteran's ilio-inguinal nerve disability.  See 38 C.F.R. § 4.56.  However, the Board determines that the ilio-inguinal nerve disability is more appropriately rated under the codes for neurological impairment, as his disability is not more akin to a muscle injury.  With regard to the Veteran's ilio-inguinal nerve disability, there is no other neurological Diagnostic Code which could provide a separate or higher rating.  

With regard to the rating criteria for scars, Diagnostic Code 7800 pertains to scars located on the head, face, or neck.  38 C.F.R. § 4.118 (2007).  Diagnostic Code 7801 provided ratings for scars, other than on the head, face, or neck, that are deep or that cause limited motion and cover an area of at least 6 square inches.  Under Diagnostic Code 7802, a maximum 10 percent evaluation is warranted where a scar covers an area or area of 144 square inches (929 square centimeters).  Id.

Also potentially applicable to the Veteran's claim is Diagnostic Code 7803, pertaining to scars which are superficial and unstable.  Id.  A superficial scar is one not associated with underlying soft tissue damage.  Id.  An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  A maximum of 10 percent is warranted if the scar is superficial and unstable.  Id.

However, based on the VA examinations the Veteran's scar is not located on his head, face or neck, is not deep and does not cause limitation of motion.  The scar also does not measure at least 6 square inches and is not unstable.  As such, Diagnostic Codes 7800-7803 are not for application.

The Board has also considered Diagnostic Code 7805 which states to rate the scars on limitation of motion of the affected part.  In this case, the Board finds no competent evidence of record that the Veteran's right inguinal scar is causing any limitation of function which could warrant a compensable evaluation under any applicable version of this Diagnostic Code.  38 C.F.R. § 4.118, Diagnostic Code 7805.  Furthermore, the Veteran is also receiving a separate rating for his ilio-inguinal nerve disability.  

In addition to the medical evidence, the Board has considered the Veteran's statements and testimony in support of his claims.  The Veteran, as a layman, is competent to report on that as to which he has personal knowledge, such scars which are tender to the touch, or pain in his right testicle.  See Jandreau, supra.; Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2).  Since his allegations of these particular symptoms appear to be uncontradicted, even by medical findings of record, the Board also finds them to be credible and probative.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Rucker v. Brown, 10 Vet. App. 67 (1997) (indicating his competency to make these proclamations must be distinguished from the weight and credibility of his lay testimony, which are factual determinations going to the ultimate probative value of this evidence).

Although lay persons are competent to provide opinions on some medical issues, see Kahana, supra., the specific issues in this case, the severity of a post-surgery scar and ilio-inguinal nerve disability, fall outside the realm of common knowledge of a lay person.  See Jandreau, supra.

A clinician, including the VA compensation examiner, takes into consideration the Veteran's subjective complaints and the results of the objective examination in determining the overall severity of his disabilities.  This determination is multi-factorial, not just predicated on lay statements and other testimony, rather, all of the relevant medical and other evidence.  The Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence."  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).  The opinion of the VA examiner is afforded more probative weight than the Veteran's lay assertion.  

Overall, the Board concludes that an increased evaluation for the Veteran's scar is not warranted.  In addition, the evidence discussed above supports no more than a 10 percent rating for the Veteran's ilio-inguinal nerve disability as of November 29, 2004.  In reaching its decision, the Board considered the benefit of the doubt rule.  However, the preponderance of the evidence is against a higher evaluation and therefore, it does not apply.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert, supra.

Extra-Schedular Consideration

There is no evidence of exceptional or unusual circumstances to warrant referring these claims for extra-schedular consideration.  38 C.F.R. § 3.321(b)(1).  The United States Court of Appeals for Veterans Claims (Court) has clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  First, there must be a determination of whether the evidence presents such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, there must be a determination of whether the Veteran's exceptional 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 extra-schedular rating under 38 C.F.R. § 3.321(b)(1).

The Board finds no such evidence in this particular instance, however.  The Veteran's complaints related to his inguinal scar and ilio-inguinal nerve disability have been rated under the appropriate diagnostic codes.  His primary symptoms are tender scars, pain, and decreased sensation.  All of his symptoms are accounted for in the regular schedular rating criteria.  According to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the Rating Schedule 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.  Indeed, in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), the Court reiterated this, noting the disability rating, itself, is recognition that industrial capabilities are impaired.

As the assigned schedular evaluation for the service-connected disabilities are adequate, referral for an extra-schedular rating is unnecessary.  Thun, supra.  Furthermore, there is no evidence of any exceptional or unusual circumstances, such as frequent hospitalizations, suggesting he is not adequately compensated for this disability by the regular Rating Schedule.  Extra-schedular referral is not warranted under the circumstances presented.  See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996).



Earlier Effective Date and CUE

In December 2006, the RO granted service connection for PTSD assigning a 70 percent rating, effective April 7, 2006.  The Veteran did not appeal this rating decision.  New and material evidence also was not received within one year of the December 2006 rating decision.  A May 2007 VA examination report shows that the Veteran's psychiatric problems remained relatively the same since the previous examination (in October 2006).  This does not constitute new and material evidence.  See 38 C.F.R. § 3.156(a).  Therefore, the December 2006 rating decision is final.  38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103.  

In February 2008, the Veteran essentially asserted that he is entitled to an effective date earlier than April 7, 2006 for his grant of service connection for his PTSD.  More specifically, he alleges that the RO committed CUE by failing to adjudicate a claim of entitlement to service connection for a psychiatric disorder based on his May 1959 Application for Outpatient Treatment.

The U. S. Court of Appeals for Veterans Claims has barred appellants from seeking to disturb the finality of a prior rating decision by filing a freestanding earlier effective date claim.  Rudd v. Nicholson, 20 Vet. App. 296 (2006).  Because the Veteran did not appeal the rating decision that granted service connection for PTSD and assigned an effective date for this disability, in order for the Veteran to obtain an earlier effective date for the PTSD rating, he must show either that CUE was made in the rating decision that established the effective date, or show that evidence was constructively in VA's possession that was not considered.  See id.  Otherwise, to the extent that the Veteran's claim for an earlier effective date for the award of service connection for PTSD is freestanding, that is, seeking to change the effective date of an award without appeal of the underlying rating decision, the Board has no jurisdiction, and the appeal would be dismissed.  The Board does find, however, that the Veteran has properly filed a motion to reverse or revise the December 2006 rating decision on the basis of CUE.

Under 38 C.F.R. § 3.105(a), previous determinations which are final and binding will be accepted as correct in the absence of CUE.  Where evidence establishes such error, the prior decision will be reversed or amended.  A decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision.  38 U.S.C.A. § 7105 (West 2002).

CUE is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts.  It is not mere misinterpretation of facts.  Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991).  It is a very specific and rare kind of error of fact or law that compels the conclusion, as to which reasonable minds could not differ, that the result would have been manifestly different but for the error.  If an appellant wishes to reasonably raise CUE, there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error.  There is a presumption of validity to otherwise final decisions, and where such decisions are collaterally attacked, as in a motion for revision or reversal based on CUE, the presumption is even stronger.  Fugo v. Brown, 6 Vet. App. 40 (1993); see also Grover v. West, 12 Vet. App. 109 (1999); Daniels v. Gober, 10 Vet. App. 474 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994).

The Court has propounded a three-pronged test to determine whether clear and unmistakable error is present in a prior determination.  First, either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied.  Second, the error must be 'undebatable' and of the sort 'which, had it not been made, would have manifestly changed the outcome at the time it was made.'  Third, a determination that there was clear and unmistakable error must be based on the record and the law that existed at the time of the prior adjudication in question.  Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). 

In view of the standard that error must be undebatable and about which reasonable minds cannot differ, the benefit of the doubt rule of 38 U.S.C.A. § 5107(b) can never be applicable in a claim of clear and unmistakable error.  Clear and unmistakable error either exists undebatably or there is no clear and unmistakable error within the meaning of 38 C.F.R. § 3.105(a).  Russell, 3 Vet. App. at 314.  In light of this, any argument that § 5107(b) has not been applied is inapplicable to a clear and unmistakable error claim.  Id.   

Additionally, a breach of a duty to assist cannot constitute clear and unmistakable error and 'grave procedural error' does not render a decision of VA non-final.  Cook v. Principi, 318 F. 3d 1334 (Fed. Cir. 2002).  A clear and unmistakable error claim is an attack on a prior judgment that asserts an incorrect application of law or fact, and an incomplete record, factually correct in all other respects, is not clear and unmistakable error.  Caffrey v. Brown, 6 Vet. App. 377, 383 (1994). 

As noted, the Veteran contends that his May 1959 Application for Outpatient Treatment should have been considered an informal claim for service connection.  The Veteran was also examined in May 1959 and determined to suffer from anxiety reaction.  Ultimately, a VA employee checked the box indicating that the Veteran was not service-connected for a psychiatric condition and therefore was ineligible for VA Outpatient Treatment.  See May 1959 Application for Outpatient Treatment.

The Board observes that following separation from service the Veteran filed numerous claims for disability compensation.  In March 1958 the Veteran filed an "Application for Compensation and Pension" for a hand and leg condition.  Following this, in May 1959 the Veteran filed his Application for Outpatient Treatment.  After he was determined to be ineligible for treatment, in June 1959, one month after he was denied eligibility, the Veteran submitted a statement requesting that his service connected leg and hand conditions be reviewed for an increase in severity.  He did not reference a claim for a psychiatric disorder in this claim.  

No other correspondence from the Veteran is on record pertaining to a claim of entitlement to service connection for a psychiatric disorder.  There is also no additional evidence pertaining to a diagnosis of a psychiatric disorder.

In consideration of the information and evidence existing in May 1959, and the subsequent July 1959 rating decision which discussed service connection for left hand and leg disabilities, the Board does not find CUE in the decision.  Error was not committed when the RO failed to address the question of service connection for a psychiatric disorder.  This is so because there was no claim, formal or informal, and there is no clear evidence that the RO believed there was such a claim.  

Despite the Veteran's contentions to the contrary, the only claim before the RO in 1959 was a claim of service connection for a left hand disability and a left leg scar.  See 38 C.F.R. §§ 3.150, 3.151, 3.155, 3.157, 3.160 (1959).  Prior to the July 1959 decision, in June 1959, the Veteran filed a statement requesting service connection for a left hand disability and a leg condition.  He did not request service connection for a psychiatric disorder or nervous condition.

The Board acknowledges that the Veteran was given an examination in May 1959 and diagnosed with anxiety reaction.  However, this does not constitute a formal claim for entitlement to service connection for this condition.  

The Board further finds that there was no informal claim for service connection for a psychiatric disorder, and no clear evidence that the RO recognized one.  Although the Application for Outpatient Treatment had a box labeled "Nature of Disease or Injury Which I Claim To Be Service Connected And For Which Treatment Is Requested," this implies that the Veteran should list a condition for which he is already service-connected, not one for which he is claiming service connection.  The Veteran had already filed a claim in March 1958 on the "Application for Compensation and Pension" showing that he was aware such forms existed.  In order to find that there was CUE in the RO's failure to adjudicate such a question in its 1959 decision, the evidence must be more than suggestive, even strongly so; it must be clear and unmistakable that VA had a claim before it or thought that it did.  In this case, the Board cannot find the evidence of such to be undebatable.  
Furthermore, to conclude that the examination indicated VA's belief that there was an informal claim for service connection for a psychiatric disorder would not be consistent with VA's practice.  The Veteran requested Outpatient Treatment for a service-connected disability, a nervous condition, and it appears a brief examination and diagnosis was given.  However, ultimately the RO determined that the Veteran was not service-connected for a psychiatric condition and Outpatient Treatment could not be granted.  The Veteran then went on to claim service connection for left hand and leg disorders one month later.  

There is also no reason to believe that by finding the Veteran ineligible for Outpatient Treatment the RO should then have treated the issue as a claim of service connection.  To the contrary, in June 1959 the Veteran filed another claim of service connection for a left hand disability and leg disorder.  He did not reference a psychiatric disorder.

The Board also acknowledges the Veteran's December 2009 testimony that he was never notified he was ineligible for benefits.  However, the Veteran did not file a new Application for Outpatient Treatment, nor did he file a claim for a psychiatric disorder.  The Veteran filed numerous other claims, but there was no reference to a psychiatric disorder.  In a January 1968 "Application for Compensation or Pension" the Veteran requested service connection for hepatitis and a left knee condition.  In a May 1968 statement the Veteran requested that the RO reopen his claim for service connection for his bilateral knees, left leg, and right foot.  He also stated he was filing for non-service-connected pension benefits.  He stated he had hemorrhaging in both eyes.

In January 1983 the Veteran submitted a statement to consider it "as a claim for service connection" for a knee condition.  In February 1983 the Veteran submitted a statement to reopen his claim of entitlement to service connection for a bilateral leg injury.  In July 1983 the Veteran filed a claim for a cut nerve during his hernia surgery and an increased rating claim for his left hand injury.  

Although it might be argued that the RO should have further assisted the Veteran with respect to the question of service connection for a psychiatric disorder, even if there was no evidence of a claim, failing to provide further assistance does not rise to the level of CUE, especially where there is evidence that the Veteran was competent to file additional claims for service connection and thus appeared to understand the process for initiating a claim.  Therefore, for the reasons enunciated above, there was no error in the RO not adjudicating the question of service connection in the July 1959 decision.  Because CUE was not committed in the July 1959 rating decision as alleged, the Veteran's present claim must be denied.


ORDER

Entitlement to service connection for a bilateral hearing loss disability is denied. 

Entitlement to service connection for tinnitus is denied.

New and material evidence having been received, the claim of entitlement to service connection for a left hand disorder, to include the left index and middle fingers is reopened; to this extent only, the appeal is granted.

New and material evidence having been received, the claim of entitlement to service connection for a left knee disorder is reopened; to this extent only, the appeal is granted.

New and material evidence having been received, the claim of entitlement to service connection for a lumbar spine disorder is reopened; to this extent only, the appeal is granted.

Entitlement to an initial evaluation in excess of 10 percent for a right inguinal scar is denied.

Entitlement to an evaluation of 10 percent, but no higher, for the ilio-inguinal nerve disability is granted, effective November 29, 2004, subject to the applicable regulatory provisions governing payment of monetary awards.

Entitlement to an effective date earlier than April 7, 2006 for the grant of service connection for PTSD, to include whether there is CUE in the RO's failure to adjudicate a claim for a psychiatric disorder in a July 1959 rating decision, is denied.


REMAND

The Board finds that further development is needed for the claims of entitlement to service connection for a right hip disorder, a bilateral foot disorder, sinusitis, left hand disability, to include the left index and ring fingers, increased rating for fourth left finger disability, and the reopened claims of entitlement to service connection for left knee and lumbar spine disorders.  

It is unclear if the Veteran is claiming service connection for the bilateral feet or just the left foot.  His original claim was for the bilateral feet, but in his March 2013 Board hearing he clarified he was claiming his left foot, although later on he claimed existing disabilities to his right foot.  Accordingly, the Board will treat the issue as entitlement to service connection for a bilateral foot disorder.

The Veteran contends that he injured multiple joints as a result of parachute jumps in service.  There is evidence of joint pain complaints in his service treatment records and evidence that he received a badge for parachuting.  

In April 1951 the Veteran reported he injured his knee.  In a September 1951 treatment record the Veteran's right foot was wrapped in bandage and gauze.  In a February 1954 treatment record the Veteran reported pain in his bilateral legs since 1950.  In August 1954 the Veteran reported injuring his bilateral knees and hip during a jump in 1950.  Also in an August 1954 record the Veteran reported hurting both of his legs and he was diagnosed with internal derangement of the left knee.

Following separation from service he has been diagnosed with arthritis and tricompartmental chondromalacia.  He has also been diagnosed with levoscoliosis in the middle of the lumbar spine and disc narrowing.  See e.g., September 1994 VA treatment record.  In an August 1994 VA treatment record he had degenerative changes of the hips.  As noted, a February 2005 VA medical opinion stated that the Veteran's left knee disorder may be secondary to an injury from service.  A March 2005 statement from the Veteran's private physician stated that the Veteran's left knee disorder was related to his multiple jumps as a parachutist in-service.

The Veteran also testified that he experiences leg and foot numbness and that he believed his disabilities began in-service due to his parachute jumps.  See e.g., December 2009 DRO hearing transcript.  Accordingly, the Veteran should be scheduled for a VA examination to determine the etiology of his claimed joint disorders.

The Veteran's claim for a lumbar spine disorder is clearly impacted by the outcome of the claim of entitlement to service connection for a left knee disorder.  See e.g., March 2013 Board hearing transcript noting Veteran believes lumbar spine disorder is secondary to knee disorder.  Therefore, the claims are inextricably intertwined.  The Court has held that all issues "inextricably intertwined" with an issue certified for appeal are to be identified and developed prior to appellate review.  Harris v. Derwinski, 1 Vet. App. 180 (1991).  As the claim of entitlement to a lumbar spine disorder is "inextricably intertwined" with the claim of entitlement to service connection for a left knee disorder, the lumbar spine claim must be remanded to the AOJ in accordance with the holding in Harris.

The Veteran contends that he suffers from sinusitis which began in-service.  Service treatment records do note that he complained of cold like symptoms and was diagnosed with sinusitis in April 1955.  In his separation examination of July 1955 he was noted to have a history of sinus problems.

Post-service he has been diagnosed with allergic rhinitis and chronic sinusitis.  See April 1994 private treatment record and October 2003 VA treatment record.  In April 2005 the physician noted recent treatment for sinusitis.  Accordingly, the Veteran should be scheduled for a VA examination to determine the etiology of any claimed sinusitis.

Regarding the service connection claim for the left hand and left fourth finger injury, the Veteran testified that he had undergone an MRI of the left hand the previous year (2012) at the Prescott VAMC.  This record is not in the claims file or Virtual VA records and should be obtained on remand.  Therefore, on remand, the Agency of Original Jurisdiction (AOJ) should make efforts to obtain all outstanding treatment records at any VA treatment facility.

In addition, the Veteran has asserted that his left hand disability, to include the left index and middle fingers, specifically neuropathy, is a result of the original injury in service to the left hand.  Based on the Veteran's new contentions, an examination and opinion should be provided to determine whether any current impairment in the left hand (other than the left ring finger) is a result of the in-service injury to the left hand.  Given that the claim must be remanded for these reasons, the examination should also address the present severity of the left ring finger disability.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  Send the Veteran a proper notice letter that includes all the criteria for substantiating his claims, including pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006).

2.  Obtain all of the Veteran's outstanding VA treatment records.  All information which is not duplicative of evidence already received should be associated with the claims file, including an MRI of the left hand in 2012 at the VAMC in Prescott, Arizona.  If the AOJ is unable to obtain any of the relevant records sought, it shall notify the Veteran that it has been unable to obtain such records by identifying the specific records not obtained, explaining the efforts used to obtain those records, and describing any further action to be taken with respect to the claim.  38 U.S.C. § 5103A(b)(2) (West 2002).

3.  Schedule the Veteran for a VA examination for an opinion concerning the likelihood (very likely, as likely as not, or unlikely) that his current right hip, bilateral foot, left knee, and lumbar spine disorders are related to service or that his lumbar spine disorder was caused, or aggravated, by his left knee disorder.  

The entire claims file (i.e., any medical records contained in Virtual VA, CAPRI, and AMIE), including this REMAND, must be reviewed by the examiner in conjunction with the opinion.  If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review.  The examiner should confirm in the examination report that (s)he has reviewed the folder in conjunction with the examination.

After reviewing the record, in addition to the other information provided in the examination report the examiner should offer the following opinions:

      a) Is it at least as likely as not that the Veteran's right hip disorder is related to service?
      
      b) Is it at least as likely as not that the Veteran's bilateral foot disorder is related to service?
      
      c) Is it at least as likely as not that the Veteran's left knee disorder is related to service?
      
      d) Is it at least as likely as not that the Veteran's lumbar spine disorder is related to service?
      
      e) Is it at least as likely as not that the Veteran's lumbar spine disorder was caused, or aggravated by his left knee disorder?

In making this important determination of causation, the examiner must specifically consider the following evidence:

	a) A February 2005 VA medical opinion stating that the Veteran's left knee disorder may be secondary to an injury from service and a March 2005 statement from the Veteran's private physician stated that the Veteran's left knee disorder was related to his multiple jumps as a parachutist in-service.

	b) The Veteran's service treatment records noting complaints of hip pain, foot pain, and left knee pain, to include a diagnosis of internal derangement of the left knee in August 1954, and evidence of hospitalization for a left knee injury for 3 days.  See July 1955 separation examination.

	c) The Veteran's treatment post-service for hip, bilateral foot, left knee, and lumbar spine disorders.

The term "as likely as not" means at least 50-percent probability.  It does not however mean merely within the realm of medical possibility.  Rather, it means that the weight of medical evidence both for and against a conclusion such as causation is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it.  The term "very likely" obviously supports the claim, whereas "unlikely" does not.

The examiner must discuss the underlying medical rationale for all opinions provided, whether favorable or unfavorable, if necessary citing to specific evidence in the file supporting conclusions.  Conversely, if the examiner concludes that an etiological opinion cannot be provided without resorting to mere speculation, he or she should clearly and specifically so specify in the examination report but, as importantly, provide explanation as to why this requested medical comment is not possible or feasible, such as by indicating whether additional evidenced or other procurable data is needed, there are multiple possible etiologies with none more prevalent than another and the limits of medical knowledge have been exhausted, or whatever may be the reason he or she cannot respond more definitively.  

4.  Schedule the Veteran for another VA examination for an opinion concerning the likelihood (very likely, as likely as not, or unlikely) that his current sinusitis is related to service.  

The entire claims file (i.e., any medical records contained in Virtual VA, CAPRI, and AMIE), including this REMAND, must be reviewed by the examiner in conjunction with the opinion.  If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review.  The examiner should confirm in the examination report that (s)he has reviewed the folder in conjunction with the examination.

After reviewing the record, in addition to the other information provided in the examination report the examiner should opine whether it is at least as likely as not that the Veteran's current respiratory disorder, to include sinusitis, is related to service.  

In making this important determination of causation, the examiner must specifically consider the following evidence:

	a) The service treatment records noting complaints of cold like symptoms and sinusitis.  See e.g., February 1953 and April 1955 records.

	b) The Veteran's treatment for respiratory conditions, to include sinusitis, post-service.

The term "as likely as not" means at least 50-percent probability.  It does not however mean merely within the realm of medical possibility.  Rather, it means that the weight of medical evidence both for and against a conclusion such as causation is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it.  The term "very likely" obviously supports the claim, whereas "unlikely" does not.

The examiner must discuss the underlying medical rationale for all opinions provided, whether favorable or unfavorable, if necessary citing to specific evidence in the file supporting conclusions.  Conversely, if the examiner concludes that an etiological opinion cannot be provided without resorting to mere speculation, he or she should clearly and specifically so specify in the examination report but, as importantly, provide explanation as to why this requested medical comment is not possible or feasible, such as by indicating whether additional evidenced or other procurable data is needed, there are multiple possible etiologies with none more prevalent than another and the limits of medical knowledge have been exhausted, or whatever may be the reason he or she cannot respond more definitively.  

5a.  Schedule the Veteran for another VA examination for an opinion concerning the etiology of his current left hand disability, including the left index and middle fingers, is related to service; and also addressing the present severity of his service-connected left ring finger disability.  All necessary tests, including x-rays if indicated, should be performed.

The entire claims file (i.e., any medical records contained in Virtual VA, CAPRI, and AMIE), including this REMAND, must be reviewed by the examiner in conjunction with the opinion.  If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review.  The examiner should confirm in the examination report that (s)he has reviewed the folder in conjunction with the examination.

After reviewing the record, in addition to the other information provided in the examination report the examiner should determine the likelihood (very likely, as likely as not, or unlikely) that the Veteran's current left hand disability, to include the left index and middle finger arthritis, as well as any peripheral neuropathy in the left hand, is related to service.  

In making this important determination of causation, the examiner must specifically consider the following evidence:

	a) The service treatment records noting the fracture to the left fourth metacarpal bone in April 1953.

	b) The Veteran's previous examinations in June 2004, February 2005, and April 2011.  

	c) The article, "Schumann's hand injury," by R.A. Henson, and H. Urich, from the British Medical Journal, 1978.

The term "as likely as not" means at least 50-percent probability.  It does not however mean merely within the realm of medical possibility.  Rather, it means that the weight of medical evidence both for and against a conclusion such as causation is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it.  The term "very likely" obviously supports the claim, whereas "unlikely" does not.

5b.  The examiner also should address orthopedic and neurological impairment associated with the service-connected left ring finger disability.  All necessary tests, including x-rays if indicated, should be performed.

The examiner should identify and describe in detail all residuals attributable to the Veteran's service-connected left ring finger disability, including the following:

(a)  State whether there is any associated scarring as a result of the fracture to the left ring finger in service; and if so, describe whether there is any impairment associated with the scarring, whether the scars are adherent to underlying tissue, whether the scars are tender to palpation or unstable, and the approximate measurements of the scars. 

(b)  State whether the Veteran's left ring finger results in loss of use of the left hand (i.e., no effective function remains other than that which would be equally well served by an amputation stump with a suitable prosthetic appliance).

(c)  State whether there is favorable or unfavorable ankylosis of the left ring finger.  

(d)  State whether any other fingers on the left hand are affected by the service-connected left ring finger disability.

(e)  Identify any neurological pathology related to the service-connected left ring finger disability, and fully describe the extent and severity of those symptoms, including a statement of which nerves are involved.

(f)  Provide an opinion as to whether the Veteran's left ring finger disability (alone) renders him unable to secure or follow a substantially gainful occupation.  In making this determination, consideration may be given to the Veteran's level of education, special training, and previous work experience, but factors such as age or impairment caused by nonservice-connected disabilities are not to be considered.

The examiner must provide a comprehensive report including complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions.

6.  After the above has been completed, the AOJ must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full.  If any development is incomplete, appropriate corrective action must be implemented.  If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action.  See Stegall v. West, 11 Vet. App. 268 (1998).

7.  After undertaking any additional development deemed necessary, readjudicate the remaining issues on appeal.  If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond.  The case must then be returned to the Board for further appellate review, if otherwise in order.

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).



______________________________________________
SARAH B. RICHMOND
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs