Citation Nr: 1322744 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 10-01 381 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a higher (compensable) initial disability rating (evaluation) for bilateral hearing loss. 2. Entitlement to an effective date prior to October 22, 2008 for the grant of service connection for bilateral hearing loss. 3. Entitlement to an effective date prior to March 13, 2009 for the grant of service connection for tinnitus. 4. Entitlement to service connection for a right ankle disorder, claimed as muscle damage. 5. Entitlement to service connection for a left calf disorder, claimed as muscle damage. 6. Entitlement to service connection for a left foot disorder, claimed as muscle damage. 7. Entitlement to service connection for a right foot disorder, claimed as muscle damage. 8. Entitlement to service connection for a right leg disorder 9. Entitlement to service connection for a left leg disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from May 1978 to May 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied service connection for disorders of the right ankle, left calf, left and right feet, and the legs. The rating decision also granted service connection for bilateral hearing loss (assigning an initial noncompensable rating), and granted service connection for tinnitus (assigning a 10 percent rating). The Veteran appealed from the denials of service connection, appealed the assigned effective dates for service connection relating to hearing loss and tinnitus, and appealed the initial noncompensable rating assigned for bilateral hearing loss. These matters are now before the Board. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal that are not otherwise of record. Concerning the Veteran's claimed left and right foot disorders, and bilateral leg disorders, while the RO characterized these as single issues (e.g. 1. left and right foot and, 2. bilateral leg), the Board has split the matters into separate claims of service connection for a left foot disorder and a right foot disorder, as well as left leg disorder and right leg disorder. This has been done so as to permit the Board to adjudicate service connection for the right foot and left leg, while allowing for a remand of the left foot and right leg claims which require additional development before the Board may properly review those appeals. The issues of service connection for a right leg disorder, left foot disorder, right ankle disorder, and left calf disorder 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. Throughout the entire initial rating period, bilateral hearing loss has been productive of average pure tone air conduction threshold at 1,000, 2,000, 3,000, and 4,000 Hertz of no worse than 28.75 decibels in the right ear and 55 decibels in the left ear, and speech recognition ability (Maryland CNC test) of 96 percent in the right ear and 76 percent in the left ear. 2. The Veteran did not file a claim of service connection for hearing loss or tinnitus within one year of separation from service. 3. The Veteran first submitted a claim of service connection for hearing loss and tinnitus on October 22, 2008; no claim, either formal or informal, for hearing loss or tinnitus was reasonably raised prior to the October 22, 2008 claim. 4. There was no in-service event, injury, or disease related to the right foot or left leg. CONCLUSIONS OF LAW 1. The criteria for a compensable initial rating for bilateral hearing loss have not been met at any time during the rating period on appeal. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2012). 2. The criteria for an effective date earlier than October 22, 2008 for the grant of service connection for bilateral hearing loss are not met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.159, 3.400 (2012). 3. The criteria for an effective date of October 22, 2008 for the grant of service connection for tinnitus have been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.159, 3.400 (2012). 4. The criteria for service connection for a left leg disorder, claimed as muscle damage, have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 5. The criteria for service connection for a right foot disorder, claimed as muscle damage, have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). 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 this case, the RO provided a VCAA notice letter to the Veteran in November 2008, prior to the initial adjudication of all claims on appeal before the Board. The letter notified the Veteran of what information and evidence must be submitted to substantiate the claims, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claims to the RO. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). In addition, the notice requirements of the VCAA apply to all elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In this case in the November 2008 letter, the Veteran was provided with such notice, including the type of evidence necessary to establish a disability rating and effective dates. With regard to the Veteran's appeal of the initial noncompensable rating for bilateral hearing loss, and the appeal of effective dates for the grants of service connection for bilateral hearing loss and tinnitus, these appeals arise from the appeals of the initial grants of service connection and subsequent initial evaluations. Once service connection is granted the claim is substantiated, additional notice is not required. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims). Based on the foregoing, adequate notice was provided to the Veteran prior to the transfer and certification of this case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and no further notice is needed under VCAA. Next, VA has a duty to assist a veteran in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012); see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . must be sought - only those that are relevant to the veteran's claim"). In this case, service records have been obtained, as has a record of private treatment and VA examination. These pertinent records have been associated with the Veteran's claims file and reviewed in consideration of the issues before the Board. The Veteran indicated that he had no additional information or evidence to submit in support of his claim, and in a November 2008 response to a request from VA for any personal records, the Veteran indicated that all of his personal records were destroyed in 2002. In disability compensation claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the factor of relationship of current disability to service (or, by analogy, to a service-connected disability), the Court has indicated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and a veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. at 83; see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service). Here, the Veteran was afforded a VA examination of his hearing loss in March 2009, during which the examiner conducted diagnostic testing, was provided the claims file for review, took down the Veteran's history, laid a factual foundation for the conclusions reached, and reached conclusions and offered opinions based on the examination that are consistent with the record. Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examination or opinion as it relates to the Veteran's tinnitus and hearing loss claims has been met. 38 C.F.R. § 3.159(c)(4) (2012); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion). With regard to the Veteran's claims of service connection for a left leg disorder and right foot disorder, as the Board has found and explained in this decision, the weight of the evidence demonstrates no in-service event, injury disease, or even complaints or treatment of the right foot or left leg. In statements sent to VA, the Veteran has not alleged an in-service onset, event, injury, or disease of either left leg or right foot disorders. In fact, in his October 2008 claim, the Veteran indicated that pain in his legs did not begin until July 1981 - two months after service separation. Furthermore, at the service separation examination the Veteran affirmatively denied any symptoms or history of symptoms associated with cramps in the legs, trick or locked knees, or neuritis. Without credible evidence of an in-service event, injury, or disease, a VA examination is not warranted even under the low threshold of McLendon. See also Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that where the evidence has failed to establish an in-service injury, disease, or event, VA is not obligated to provide a medical examination). The Board finds that all necessary development has been accomplished; therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In addition to the evidence discussed above, the Veteran's statements in support of the claims are also of record. The Board has carefully considered such statements and concludes that no available outstanding evidence has been identified. Additionally, the Board has reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. For these reasons, the Board finds that the duties to notify and assist the Veteran in the development of these claims have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Initial Rating for Bilateral Hearing Loss Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. At the outset, the Board notes that the Veteran's appeal for a compensable rating for bilateral hearing loss is an appeal from the initial assignment of a disability rating in May 2009. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). Here, as the evidence discussed below does not show that bilateral hearing loss has significantly changed during the initial rating period on appeal; a uniform evaluation is warranted. In the May 2009 rating decision on appeal, the Veteran was awarded service connection for bilateral hearing loss and granted an initial noncompensable (0 percent) evaluation, effective October 22, 2008. Bilateral hearing loss is rated under 38 C.F.R. § 4.85, Diagnostic Code (DC or Code) 6100. Under this Code, hearing impairment evaluations are derived by a mechanical application of the ratings schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmen v. Principi, 3 Vet. App. 345, 349 (1992). The ratings schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in both ears. See 38 C.F.R. § 4.85. When the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Additionally, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). In an April 2010 statement, the Veteran contended that the level of his hearing loss disability warrants rating under 38 C.F.R. § 4.86 as an exceptional pattern of hearing loss. He had additionally contended, more generally, that his hearing loss warrants a compensable rating. After reviewing all the evidence, lay and medical, the Board finds that throughout the entire initial rating period, the Veteran had bilateral hearing loss manifested by average pure tone air conduction threshold at 1,000, 2,000, 3,000, and 4,000 Hertz of no worse than 28.75 decibels in the right ear and 55 decibels in the left ear, and speech recognition ability of 96 percent in the right ear and 76 percent in the left ear. Application of the rating criteria dictates that a compensable evaluation is not warranted for the reasons discussed below. The only evidence of record that reflects audiological testing during the period on appeal comes from VA examination in March 2009, when on audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 15 10 35 55 LEFT 25 20 50 75 75 Puretone threshold average on the right side was 28.75, and on the left side was 55. Speech audiometry using the Maryland CNC word list was 96 percent in the right ear and 76 percent in the left ear. The diagnosis was sensorineural hearing loss and normal to mild ear function. The degree of loss in the right ear was assessed as normal to moderately severe, while in the left ear hearing loss was normal to severe. To determine the appropriate rating evaluation for the Veteran's hearing loss, the Board first looks to Table VI of DC 6100 as directed by 38 C.F.R. § 4.85(b). Because the Veteran's puretone threshold average on the right side was 28.75 hertz with 96 percent speech discrimination, Table VI assigns the Roman numeral I to the right ear. The Veteran's left ear puretone threshold average was 55 hertz, with speech discrimination of 76 percent. Table VI indicates the assignment of Roman numeral IV for the left ear. Next, DC 6100 directs the rating specialist to apply the Roman numerals derived from Table VI, to Table VII. Specifically, the horizontal rows of Table VII represents the ear having the better hearing and the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(e). Where the column for Roman numeral I and the row for Roman numeral IV intersect, Table VII reveals that a rating of zero percent is warranted. The rating schedule allows for each ear to be evaluated separately where there is an exceptional pattern of hearing impairment. 38 C.F.R. § 4.86. An exceptional pattern of hearing loss occurs when puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more; or where puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. Id. In this case, the Veteran's hearing loss is not an exceptional pattern of hearing impairment as contemplated by VA regulations; specifically in neither ear are puretone thresholds at each of the four specified frequencies 55 decibels or more, nor are puretone thresholds 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz in either ear. Thus, separate evaluations for each ear are not warranted. Furthermore, as the evidence shows the Veteran does not have deafness, special monthly compensation under 38 C.F.R. § 4.85(g) is not for consideration. Based on the foregoing, the Board concludes that the Veteran's bilateral hearing loss has been zero percent disabling throughout the entire initial rating period. As the preponderance of the evidence is against the appeal for a higher rating for any period, there is no doubt to be resolved. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration for Bilateral Hearing Loss The Board has also considered whether referral for an extraschedular rating for bilateral hearing loss is warranted. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of a veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Here the rating criteria for the disability at issue reasonably describe and assess the Veteran's disability level and symptomatology. The criteria rate the disability on the basis of loss of hearing acuity, to include reduction in speech recognition; thus, the demonstrated manifestations - namely the Veteran's loss of hearing acuity and reduction in speech recognition - are contemplated by the provisions of the rating schedule. As the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate. To the extent that the Veteran has contended that bilateral hearing loss impacts his ability to work, the matter of entitlement to TDIU is addressed in the remand portion of this decision below. For these reasons, the Board finds that the schedular rating criteria is adequate to rate the Veteran's bilateral hearing loss, and referral for consideration of an extra-schedular evaluation is not warranted. Earlier Effective Date for Service Connection for Hearing Loss and Tinnitus On October 22, 2008, VA received the Veteran's claim for service connection for bilateral hearing loss. On March 13, 2009, the Veteran underwent a VA examination during which he endorsed tinnitus. In a rating decision of May 2009, the RO granted service connection for bilateral hearing loss, effective October 22, 2008, and granted service connection for tinnitus, effective March 13, 2009. The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. Additionally, if a claim is received within one year after separation from service, the effective date of an award will be set as the day following separation from active service. 38 C.F.R. § 3.400(b)(2)(i). The date of receipt of the claim, or "date of the claim," means the date of the application based upon which benefits are awarded, not the original claim for service connection. See Sears v. Principi, 16 Vet. App. 244, 246-47 (2002), aff'd, 349 F.3d 1326 (Fed. Cir. 2003). In this context, it should be noted that the provisions of 38 U.S.C.A. § 5110 also refer to the date an application is received. While the term "application" is not defined in the statute, the regulations use the terms "claim" and "application" interchangeably, and they are defined broadly to include "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. §§ 3.1(p), 3.155 (2012); Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). In addition, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). Following notification of an initial review and adverse determination by the RO, a notice of disagreement must be filed within one year from the date of notification thereof; otherwise, the determination becomes final. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). When there is a final denial of a claim, and new and material evidence is subsequently received, the effective date of the award of compensation is date of receipt of the new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(1)(ii) (2012). The Veteran contends that he is entitled to an earlier effective date for both grants of service connection. Specifically, the Veteran has stated that within one year of separation from active duty in May 1981 he submitted a claim of service connection for hearing loss and tinnitus and, accordingly, the appropriate effective date should be the day after his separation from service. In the alternative, the Veteran's representative has argued that the Veteran was unaware of the technical term "tinnitus" when he filed his 2008 claim relating to hearing loss, but that VA should broadly construe his 2008 hearing loss claim to have included a claim for tinnitus. Following separation from service in May 1981, the first contact of any kind that VA received from the Veteran was on October 22, 2008. This was more than one year from separation. The Board has carefully reviewed the claims file, and finds that no prior claim for benefits was made; formal or informal. In May 2009, the Veteran stated that at the time of discharge from service he made a claim of service connection for hearing loss and tinnitus. He stated that "the paper work was filed on that day" but that he never received a response from VA regarding his claim. As a result the Veteran states that he "could only assume the claim was denied." In support of his contention, the Veteran points to the language of the March 2009 VA examination report which stated "the Veteran reports the onset of tinnitus within a year of exiting military service." The Veteran contends that this is proof that he filed a claim for service connection within a year of discharge. The Board finds that the Veteran first submitted a claim of service connection for hearing loss on October 22, 2008. To the extent that in the Veteran claims that he submitted a claim of service connection within one year of separation from service, the Board finds this to be not credible. Had the Veteran submitted a claim on or about May 1981, such a claim or a record of such claim would appear in the claims file today. "There is a presumption of regularity under which it is presumed that government officials 'have properly discharged their official duties.'" Ashley v. Derwinski, 2 Vet. App. 307, 308 (1992) (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 14-15, 47 S.Ct. 1, 71 L.Ed. 131 (1926)). To rebut the presumption in this case, the Veteran bears the burden of producing clear evidence that VA did not follow its regular practices or that its practices were not regular. See Ashley, 2 Vet. App. at 309. With regard to the Veteran's reliance on the March 2009 report from the VA examination that "the Veteran reports the onset of tinnitus within a year of exiting military service," this statements does not signify anything more than a recording of the history given by the Veteran to the VA examiner. Furthermore, that the Veteran first noticed onset of tinnitus within one year of separation from service does not suggest or imply in any way that he submitted a claim within one year of separation from service. Based on the foregoing, the Board finds that the Veteran first submitted a claim of service connection for hearing loss on October 22, 2008 and, accordingly, that is the date which VA laws and regulations prescribe as the effective date for any grant of service connection stemming from such claim. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. The Board finds that the Veteran first submitted a claim of service connection for tinnitus on October 22, 2008. In the May 2009 rating decision on appeal, the RO made the Veteran's award of service connection for tinnitus effective on March 13, 2009 as this was the date that tinnitus was noted on VA examination. However, broadly interpreting the Veteran's October 22, 2008 claim of service connection for hearing loss, the Board finds that the claim reasonably included a claim of service connection for tinnitus. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009) (holding that claims for service connection for PTSD include claims for service connection for any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). Accordingly, as the date of claim for tinnitus was October 22, 2008, this date is the correct effective date for any grant of service connection stemming from such claim. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. Service Connection for Right Foot and Left Leg Disorders Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service, however this presumption applies only to those diseases listed under 38 C.F.R. § 3.309(a). The Board has carefully reviewed the Veteran's contentions, and does not find evidence of any "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). The Veteran has endorsed pain, swelling and muscle spasms of the lower extremities, and these are symptoms which are capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, a lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. Id. A veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). See 38 C.F.R. § 3.159(a)(2). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Court has held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Court has also stated, "[i]t is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Before proceeding, the Board notes that the Veteran has claimed service connection for a left leg disorder and right foot disorder as separate from claims associated with the left foot, right ankle, and left calf. These claims are addressed in the remand section of this decision. 38 C.F.R. § 4.14 (2012) prohibits the assignment of evaluations for the same symptoms of disability under more than one Diagnostic Code. Accordingly the foregoing adjudication of the Veteran's claim for service connection for left leg and right foot disorders is undertaken without discussing the merits of the Veteran's claims of service connection for disorders associated with the left foot, right ankle, and left calf so as to avoid the potential of prohibited pyramiding. The Veteran has contended that, other than disorders associated with the left foot, right ankle, and left calf, he has had "trouble" with his legs including spasms, pain, swelling, tenderness and limitation of joint movement. The Veteran has not endorsed any symptoms associated with his right foot. A review of the service treatment records reveals no treatment or complaints of the left leg or right foot, and on service separation examination in April 1981 the Veteran affirmatively denied cramps in the legs, arthritis, bone or joint deformity, trick or locked knees, and foot trouble to include any history of such symptoms. Furthermore, on his October 2008 claim for service connection, the Veteran indicated that leg symptoms did not begin until July 1981, which is months after service separation. The Board finds that the weight of the evidence demonstrates that during service there was no in-service event, injury, or disease related to the right foot or left leg. The Veteran's reports of symptomatology are competent; however, even when accepted as true such reports do not provide evidence of any in-service event, injury, or disease referable to the right foot or left leg. Without evidence to establish as much, the Veteran's claims of service connection cannot be granted in this case. Accordingly the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claims of service connection for right foot and left leg disorders must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER A higher (compensable) initial evaluation for bilateral hearing loss is denied. An effective date earlier than October 22, 2009 for the grant of service connection for bilateral hearing loss is denied. An effective date of October 22, 2009 for the grant of service connection for tinnitus is granted. Service connection for a right foot disorder is denied. Service connection for a left leg disorder is denied. REMAND Service Connection for Left Foot, Right Leg, Right Ankle, and Left Calf Disorders The Veteran is claiming service connection for disorders of the left foot, right leg, right ankle, and left calf. In disability compensation claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Service treatment records show that in October 1979 the Veteran reported a left foot muscle pull and presented with decreasing edema and tenderness, and increasing range of motion; the only treatments were "A+ balm," elevating the foot, an ace wrap, and warm soaks. The service treatment record also shows that the Veteran was using crutches. During service, in October 1980 the Veteran reported having fallen while roller skating. He had gross edema in the right thigh and buttocks area, with good range of motion and some inflammation. The assessment was of a soft tissue injury. In March 1980 the Veteran endorsed right ankle pain when walking. The assessment was ankle tendonitis. In March 1981 the Veteran complained of numbness in the left calf when walking. The Veteran indicated to the treating clinician that he had injured his left calf while running. In this case, the record includes the Veteran's competent statements averring to persistent symptoms of current disability; evidence of in-service injury and/or treatment pertaining to the left foot, right leg, right ankle, and left calf; the Veteran's statements indicating that his current symptomatology may be associated with service; and there is otherwise insufficient competent medical evidence of record, both regarding current disability and nexus to service, on which to base a decision on the claims of service connection for the claimed disorders of the left foot, right leg, right ankle, and left calf. With regard to evidence of in-service treatment of the left foot, right leg, right ankle, and left calf, such treatment amounts to individual in-service reports of symptomatology. Accordingly, the opportunity to be subject to one or more VA examinations should be afforded to the Veteran. Accordingly, the issues of service connection for left foot, right leg, right ankle, and left calf disorders are REMANDED for the following action: 1. Schedule the Veteran for VA examination to aid in determining the nature and likely etiology of his claimed left foot, right leg, right ankle, and left calf disorders. The VA claims folder should be made available to the examiner for review in connection with the examination. The examiner should elicit from the Veteran and record a complete clinical history referable to the left foot, right leg, right ankle, and left calf. The examiner should also report all current diagnoses relating to the left foot, right leg, right ankle, and left calf. For each of the identified diagnoses, if any, the examiner should offer an opinion on whether it is as likely as not that any currently diagnosed disorder is related to service, including to the in-service treatment, including specifically: a. Is a current left foot disorder, if any exists, related to in-service complaints in October 1979 of a left foot muscle pull? b. Is a current right leg disorder, if any exists, related to an in-service October 1980 fall while roller skating resulting in right thigh gross edema? c. Is a current right ankle disorder, if any exists, related to right ankle tendonitis during service in March 1980? d. Is a current left calf disorder, if any exists, related to in-service March 1981 complaints of numbness in the left calf when walking? If it is determined that more than one examination is required to address the above questions, appropriate additional examination(s) should be arranged. 2. After completing the indicated development above, readjudicate all claims for service connection remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, a Supplemental Statement of the Case should be furnished to the Veteran, and he should be afforded a reasonable opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim(s). See 38 C.F.R. § 3.655 (2012). These claims 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). ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs