Citation Nr: 1323135 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 08-03 129 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for a right ankle disability. 2. Entitlement to service connection for a left ankle disability as secondary to the right ankle disability. 3. Entitlement to service connection for a back disability. 4. Entitlement to service connection for a bilateral eye disability. 5. Entitlement to service connection for the residuals of frostbite of the ears (a bilateral ear disability other than hearing loss). 6. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and P. L. ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1965 to September 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from April 2007 and March 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. In September 2008, the Veteran and P. L. and J. G. testified at a local hearing before a Decision Review Officer (DRO). In July 2010, the Veteran and P. L. testified at a Board hearing held before the undersigned Veterans Law Judge in Albuquerque, New Mexico. A copy of each transcript is of record. In an August 2010 decision, the Board, in pertinent part, remanded the claims for additional development and adjudicative action. The case has been returned to the Board for further appellate review. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. All relevant evidence necessary to decide the Veteran's appeals for a bilateral ankle disability, back disability, bilateral eye disability, and the residuals of frostbite of the ears has been obtained. 2. The Veteran's current right ankle disability is related to service, to include an in-service ankle injury. 3. The Veteran's current back disability is not related to service, to include an in-service back injury. 4. The Veteran's current left ankle disability is not causally related to or aggravated by the service-connected right ankle disability. 5. The Veteran does not have a currently diagnosed bilateral eye disability or residuals therefrom. 6. The Veteran does not have current residuals of frostbite of the ears. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for a right ankle disability have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. The criteria for service connection for a back disability have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 3. The criteria for service connection for a left ankle disability as secondary to service-connected right ankle disability have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2012). 4. The criteria for service connection for a bilateral eye disability have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 5. The criteria for service connection for the residuals of frostbite of the ears (a bilateral ear disability other than hearing loss) have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under 38 C.F.R. § 3.303(a), service connection means that the facts, as shown by the evidence, establishes that a particular injury or disease was incurred coincident with service. It may be granting by affirmatively showing inception or aggravation during service. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Service connection can also be established through application of statutory presumptions. Diseases subject to presumptive service connection are shown at 38 C.F.R. § 3.309. Under 38 C.F.R. § 3.303(b), if a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. When the fact of chronicity in service (or during the presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. When the fact of chronicity in service (or during the presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative route to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, the evidence does not show the Veteran has ever been diagnosed with a disease listed as a "chronic disease" under 38 C.F.R. § 3.309(a) for his claims of service connection for a bilateral ankle disability, back disability, bilateral eye disability, or the residuals of frostbite of the ears, thus 38 C.F.R. § 3.303(b) does not apply in this case. Service connection may also 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). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a) (2012). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id.; see Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448 (1995); Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). In making all determinations, the Board must consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology 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, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed, Cir. 2007). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims on appeal. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant 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(b); 38 C.F.R. § 3.102. Service Connection for Right Ankle and Back Disabilities The Veteran contends that service connection is warranted for right ankle and back disabilities due to in-service injuries. At the outset, the Board finds the evidentiary record shows the Veteran has a current diagnosis of right ankle tendonitis and degenerative disc disease of the lumbar spine without radiculopathy, as noted by the September 2010 VA examination reports. Next, the weight of the evidentiary record shows the Veteran sustained injury to the right ankle and back which did not manifest in a right ankle or back disability during active service. Review of the service treatment records show that on entry examination in March 1965, there were no complaints or abnormalities of the ankle or spine nor pertinent notations on the Report of Medical History. Similarly, the March 1967 separation examination report is silent as to the Veteran's ankle and spine. As discussed in more detail below, service treatment records are unavailable for review. Nevertheless, the Veteran's DD Form 214 documents his military occupational specialty (MOS) were light vehicle driver and light truck driver with foreign service in the United States Army Europe (USAREUR), and the Veteran has consistently reported an in-service ankle and back injury corroborated by statements from fellow soldiers. On an October 2006 Application for Compensation and/or Pension Benefits, via a VA Form 21-526, the Veteran reported, with regard to the ankle, "slip on snow of five ton truck" and with regard to back pain, "loading heavy support supplies, slip on snow off five ton truck." The Veteran testified at the September 2008 DRO hearing that he injured the ankle at Fort Bragg and when he slipped off a running board, The right ankle was also swollen after he slipped in the snow and ice while fueling a tank. He noticed the ankle was flexible and did not seek treatment for the ankle while in service. The Veteran further reported after he got up from the fall, he felt his back tighten then blacked out. He was not taken to the hospital due to about a 90 mile distance, but was given pain killers from a little dispensary on site and was put on light duty for three days. Thereafter, he had trouble bending over and picking anything up. At the time of separation, he avoided being medically discharged and did not report his back symptomatology. At the July 2010 Board hearing, the Veteran reiterated the in-service injuries. The Board finds the Veteran is competent to report symptoms that one experiences as it comes through the use of one's senses. See Layno, 6 Vet. App. at 470. The Veteran's competent reports of in-service injury to the ankle and back are corroborated by the following statements from fellow soldiers. In August 2007, P. L. reported being assigned to the same squadron as the Veteran in Germany and witnessed the Veteran's two injuries in 1966. First, in June or July of 1966, he witnessed the Veteran transfer 55 gallon drums of fuel off a five ton transport truck then fall off the rear of the truck. Next, in November 1966, he witnessed the Veteran slip on ice and fall off the rear of a battle tank (M60A1MBT) while transferring a fuel nozzle. To P. L.'s knowledge, the Veteran was not treated at the 97th General Hospital in Frankfurt, Germany for either injury but was treated at the post infirmary. At the September 2008 DRO hearing, P. L. reiterated his assertions made in the August 2007 personal statement, and specified the Veteran fell and landed on the back and side. Additionally, in a February 2012 statement, J. E. reported he served and resided in the same room with the Veteran in Germany from 1966 to 1967. While working with the Veteran loading 50 five gallon drums, he witnessed the Veteran hurt the back, not sent to the hospital, and given cream to rub on it. J. E. also stated that on another occasion, he did not witness the Veteran slip in the snow but knows the injury occurred and the Veteran was given light duty and in a lot of pain. In light of the Board's findings of current right ankle and back disabilities and in-service injury, the remaining questions for consideration are whether the current disabilities are caused by or related to the in-service incidents. Right Ankle Disability The weight of the credible and probative evidence of record shows the Veteran's current right ankle disability is related to service, to include an in-service ankle injury. Following a review of the claims file and physical examination, the September 2010 VA examiner opined the Veteran's current right ankle tendonitis is at least as likely as not etiologically related to service from October 1965 to September 1967. She explained the Veteran has a consistent history of a fall from a truck during military service, injured the right ankle, and May 2006 x-ray findings of the right ankle are positive for linear calcification probably from an old trauma. On the question of relationship of a right ankle disability to service, the only probative nexus opinion on file, in September 2010, weighs in favor of the claim. The September 2010 VA medical opinion is considered competent and of high probative value because it is factually accurate, supported by sufficient rationale, and rendered after a review of the most recently associated evidence of record. 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. Reasonable doubt exists because the approximate balance of positive and negative evidence, either qualitatively and quantitatively, does not satisfactorily prove or disprove the claim. It is substantial doubt and one within the range of possibility as distinguished from pure speculation or remote possibility. 38 U.S.C.A. § 5107(b). For these reasons, the Board finds that the evidence of record shows credible reports of an in-service ankle injury and a current diagnosis of right ankle tendonitis, which the September 2010 VA examiner opined is at least as likely as not etiologically related to service. Given the facts of this case, and with resolution of all reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for a right ankle disability are met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Back Disability The weight of the credible and probative evidence of record shows the Veteran's current back disability is not related to service, to include an in-service back injury. On VA examination in September 2010 for the spine, the Veteran reported a history of lower back problem in the 1970s but could not recall exactly when it started nor any treatment received for the lower back. The Veteran noted having "pain killers," the back problem got worse in 1971 for which he had no consultation, and using heating pads and over the counter pain medications. He also reported current symptoms of spasm and pain in the mid lower back for one to six days a week. Upon physical evaluation and review of the claims file, the examiner opined that the Veteran's degenerative disc disease of the lumbar spine without radiculopathy is less likely than not etiologically related to service from October 1965 to September 1967. She explained that: Degenerative disc disease of the spine [is] a fairly common finding in older population and increases with age due to repetitive weight bearing trauma from occupation (Veteran had a physical labor type of job) or physical activities. The Veteran had not had consultations until 2006. Almost 40 years since his last day of military service. There was no documentation of a back problem earlier or a few years after the military service. At the September 2008 DRO hearing, the Veteran asserts the two reported incidents in service, alone or combined, caused his back condition. At the July 2010 Board hearing, the Veteran reported he first sought treatment for the back in 2006 at a VA facility. He was issued a TENS unit one year prior and uses it constantly for treatment. The Board also acknowledges the Veteran's wife's statement in February 2007, in which she reported the Veteran has always had a problem with his lower back. The Board finds that the most probative evidence regarding a nexus between the current back disorder and in-service injury is the September 2010 VA medical opinion, which, as noted above, did not etiologically relate the current disorder to service, but rather to age. The Board acknowledges the Veteran and his wife are competent to report symptoms that one experiences as it comes through the use of one's senses. See Layno, 6 Vet. App. at 470. However, they are not competent and with the appropriate medical training and expertise to offer an opinion on a medical matter, including the etiology of the Veteran's current back disorder. See Bostain v. West, 11 Vet. App. 124, 127 (1998); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). The question of causation, in this case, involves a complex medical issue that the Veteran, nor his wife, is not competent to address (such as how the Veteran's current back disability began: from age or from a minor accident from around 40 years ago). Jandreau, 492 F.3d at 1376-77. The fact that the Veteran served on active duty from October 1965 to September 1967 and treatment for the back began decades later only supports this finding. For the reasons and bases discussed above, the Board finds that a preponderance of the evidence is against the claim for service connection for a back disability, and this claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Service Connection for a Left Ankle Disability During the course of this appeal, the Veteran limited his claim of service connection for a left ankle disorder as secondary to the right ankle disorder. The Veteran made such an assertion at the September 2008 DRO hearing, and pursuant to the August 2010 Board remand instructions, the Veteran was provided notice for secondary service connection in August 2010 and a November 2011 VA Disability Benefits Questionnaire (DBQ) medical opinion for the left ankle. The Board notes that a May 2006 VA outpatient treatment record notes findings of ligament laxity in the right and left ankles and March 2008 private x-ray results of the left ankle reveal irregularity along the posterior cortical surface distal fibula seen on lateral radiograph only and moderate soft tissue swelling, thus the Veteran has a current left ankle disorder. In addition, the RO denied this claim on a secondary basis in a January 2012 Supplemental Statement of the Case (SSOC) and service connection is now in effect for a right ankle disability, as discussed above. Nevertheless, the Board finds that the weight of the evidence demonstrates the current left ankle disorder is not causally related to or aggravated by the service-connected right ankle disability. In the November 2011 VA DBQ medical opinion, the VA physician opined the Veteran's left ankle disorder is not caused by or a result of the service-connected right ankle disorder, and provided the following reasons why: The Veteran worked as a construction worker until 1982. The Veteran did not have pain issues or laxity problems with the left ankle until 2006. February 2008 x-ray findings of the left ankle reveal subtle cortical irregularity lucency posterior distal fibula representing an old injury, thus "represents an injury of the left ankle in itself not coming from the right ankle." The Veteran displayed normal ambulation at the September 2010 VA DBQ examination with no problem with weight bearing resulting from the right ankle and there was no effort of the left side trying to compensate for the right ankle disorder. Furthermore, 2006 x-ray results of the right ankle were normal without a slight or subtle change representing arthritis, so the Veteran's right ankle disorder is not that severe that may impact the left side. Based on the evidence of record, the weight of the competent and probative evidence demonstrates no causal relationship between the Veteran's currently diagnosed left ankle disorder, and his service-connected right ankle disorder, or aggravation of the service-connected right ankle disorder and the left ankle disorder. As a result, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claims for service connection for a left ankle disorder on a secondary basis. For the reasons and bases discussed above, the Board finds that a preponderance of the evidence is against the claim for service connection for a left ankle disability on a secondary basis, and this claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Service Connection for a Bilateral Eye Disability and the Residuals of Frostbite of the Ears On the October 2006 VA Form 21-526, the Veteran reported snow exposure and improper eye wear with regard to his claim for a bilateral eye disability and exposure to low temperature with very poor protection and adverse conditions with regard to his claim for residuals of frostbite of the ears. He also noted this disability and residuals began in January 1966. At the September 2008 DRO hearing, the Veteran testified that he had problems with his eyes due to the glare on the snow and was issued sunglasses to wear in service but wore regular sunglasses pursuant to instructions from his sergeant. His eyes are always watery and given eye drops for treatment. With regard to his ears, he testified to not wearing proper ear protection in the cold and his ears are painful in the winter. At the July 2010 Board hearing, the Veteran testified he started having eye problems during the winter, October 1966 in Germany, while driving in the snow without wearing sunglasses, although they were issued to glare off the snow. After the winter months, his eyesight got worse, and from then on, he has always had a problem with the snow and was given eye drops during service. He was told by a doctor that he has cataracts from rubbing his eyes so much. He reported not getting treatment for the eyes until the 1970s "to get stuff taken out of the eyes," and was instructed to get prescribed sunglasses but never pursued it. With regard to the ears, the Veteran reported at the Board hearing that frostbite of the ears began during the first winter in service. He was issued arctic underwear but could not use protective winter gear to protect his ears because he had to "man the radio" and stayed out in the cold all day during his duties. The Veteran did not know he had frostbite in service, his ears were purple and numb, and now the ears are sensitive to the cold. During the September 2010 VA examinations for the eyes and cold injury of the ears, the Veteran reported an episode of bilateral "snow blindness" during the winter of 1966. He described above normal ocular pain, but denied taking any medication to moderate the alleged discomfort. He also noted a multi-year history of blurry vision but refused to use bifocals. Moreover, he reported that when he was in Germany from 1966 to 1967, it was very cold, always raining and wet, and not treated for any types of cold injury related condition. Such cold exposure lasted for weeks while completing duties out in a convoy and filling out tanks with gas or diesel. Additionally, in a February 2007 statement, the Veteran's wife reported she met the Veteran in 1967, they married in 1969, and the Veteran suffers from frostbite on both ears and from his vision. The Board acknowledges the Veteran and his wife are competent to testify about observable symptoms with regard to his eyes and ears. See Layno, 6 Vet. App. at 469. Nevertheless, the weight of the evidence demonstrates the Veteran does not have a currently diagnosed bilateral eye disability or residuals of frostbite of the ears. Pursuant to VA outpatient treatment sessions, in April 2006, physical examination of the head, ears, eyes, nose, and throat (HEENT) showed pupils are equal, reactive to light and accommodation, and glaucoma screening results showed 20/15 in the left eye, 20/25 in the right ear, and reading glasses only was noted. In October 2008, the list of active outpatient medications included artificial tears for both eyes to be used every six to eight hours. On VA examination for the eyes in August 2010, the VA examiner noted that if the pain was real, then light from the indirect ophthalmoscope into a dilated eye would have been excruciating, and the Veteran did not even flinch. Upon physical evaluation, there were no findings of abnormal accommodation, abnormal lacrimal duct injury, abnormal eyelids, chronic conjunctivitis, residuals of eye injury, lagophthalmos, symblepharon, ptosis, nystagmus, eyelash loss, or eyebrow loss. Following the clinical evaluation, review of the claims file, and 25 years of clinical practice, the examiner concluded the Veteran exhibited normal and healthy ocular structures from anterior to posterior bilaterally, there is no ultraviolet radiation burn or even residuals of one, and there is no injury present in either eye. She also explained that: True snow blindness requires immediate medical intervention with medication and 24 hour hospitalization. The suns' ultraviolet radiation essentially burns the cornea (similar to a welder's flash burn)[.] The intensity of the pain, incapacitates the person from any activity. The cornea progressively heals in the next 4-5 days with full recovery. This patient present[s] no such description and there is no notation of any TMC visit or counseling of the alleged condition. On VA examination for cold injury of the ears in August 2010, there were no findings of cold injury related on both ears and the external ears are intact with no evidence of ulcers, scarring, or loss of tissue. Following the evaluation and review of the claims file, the same VA examiner opined there is no diagnosis of a cold injury related condition or a residual of it, providing highly probative evidence against this claim. Simply stated, the Board fully understands the Veteran's concerns and complaints regarding his vision and ears (other than hearing loss). However, based on the evidence of record, the weight of the competent evidence demonstrates the Veteran does not have a current diagnosis of a bilateral eye disability or residuals of frostbite of the ears at this time, based on the best evidence. As a result, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claims for service connection for a bilateral eye disability or residuals of frostbite of the ears. The Veteran was informed in November 2006, February 2008, and August 2010 notice letters that he must have evidence of a current disability for his claims on appeal. He has not presented any competent and probative evidence nor has he provided any information as to where VA could obtain such evidence. Since the weight of the competent medical evidence is against the conclusion that the Veteran currently has a bilateral eye disability or residuals of frostbite of the ears, the service connection criteria requiring the presence of a current "disability" have not been met and service connection cannot be granted for these claims. See Brammer, 3 Vet. App. at 225. For the reasons and bases discussed above, the Board finds that a preponderance of the evidence is against the claims for service connection for a bilateral eye disability and the residuals of frostbite of the ears, and these claims must be denied. Because the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The Board finds that the VCAA notice requirements have been satisfied by November 2006, February 2008, and August 2010 letters. In these letters, VA informed the Veteran that in order to substantiate a claim for service connection, the evidence needed to show he had a current disability, a disease or injury in service, and evidence of a nexus between the post service disability and the disease or injury in service, which was usually shown by medical records and medical opinions. The Veteran was also informed of the criteria needed to establish service connection on a secondary basis. As to informing the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf, VA informed the Veteran it had to obtain any records held by any federal agency. These letters also informed the Veteran that on his behalf VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. Finally, the letter told the Veteran that he could obtain private records himself and submit them to VA. The VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the November 2006, February 2008, and August 2010 letters included the type of evidence necessary to establish a disability rating and effective date. Regarding the duty to assist, VA must make reasonable efforts to assist a 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. In connection with the claims on appeal, the evidence of record includes the Veteran's service entrance and examination reports, VA outpatient treatment records, private x-ray reports of the ankles, statements from the Veteran, buddy statements, and VA examination reports with medical opinions dated September 2010 and November 2011. The VA examiners reviewed the Veteran's claims file and medical history, recorded pertinent examination findings, and provided conclusions with supportive rationale. The Board notes that the VA examination reports are probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In connection with these claims on appeal, the Veteran also testified before a DRO in September 2008 and before the undersigned Veterans Law Judge in July 2010. Any deficiencies in development were addressed in the subsequent August 2010 Board remand, as discussed below. See Bryant v. Shinseki, 23 Vet. App. 488 (2010) (holding that the Veterans Law Judge who conducts a hearing fulfill the duty to fully explain the issues and the duty to suggest the submission of evidence that may have been overlooked). A November 2006 Personal Information Exchange System (PIES) response for the Veteran's complete service treatment records noted service treatment records are not on file and the only medical documents on file are the enlistment and separation physicals. The Board recognizes that it has a heightened duty to explain its findings and conclusions because of the missing records and to carefully consider the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). In this case, the Veteran has been advised of the RO's unsuccessful efforts and has been requested to send any pertinet records he has in his possession; however, the Veteran has failed to provide such information. Thus, the Board concludes that VA's duty to assist the Veteran has been satisfied. See 38 C.F.R. § 3.159(e). The Board acknowledges that VA has not obtained Social Security Administration (SSA) records although the Veteran testified at the September 2008 DRO hearing that he is 62 and "already on a little bit of Social Security, but if you check, you can go back to 1982, and I have not been able to because of that, too." These records need not be obtained in this instance because the Veteran's report does not indicate such benefits are relevant to the claims on appeal. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (holding that SSA records need not be obtained if they are not relevant or potentially relevant to a claim). Pursuant to the Board's August 2010 remand instructions, the RO arranged for VA examinations in September 2010 for cold injury of the ears, eyes, joints, and spine, as well as a November 2011 VA DBQ medical opinion. These examination reports reflect that the examiners considered the evidence of record and the reported history of the Veteran, conducted a thorough examination of the Veteran, noting all findings necessary for proper adjudication of the matter, and explained the rationale for the opinions offered. Hence, the Board concludes that the September 2010 examinations and November 2011 opinion are adequate and substantially complied with the August 2010 remand instructions. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes); see also Dyment v. West, 13 Vet. App. 141 (1999) (a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where there is substantial compliance with the Board's remand instructions). The RO also contacted the Veteran in an August 2010 notice letter informing him of the criteria needed to establish service connection on a secondary basis and the criteria needed to establish TDIU and requesting him to complete the enclosed VA Form 21-4142, Authorization and Consent to Release Information for each health care provider so that VA can obtain the treatment information. The claims were readjudicated by the RO in an August 2010 SSOC. VA's duty to assist is met. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims on appeal. The evidence of record provides sufficient information to adequately evaluate the claims, all obtainable evidence identified by the Veteran relative to the claims has been obtained and associated with the claims file, and the Board is not aware of the existence of any additional relevant evidence which was not obtained. Therefore, no further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). ORDER Service connection for a right ankle disability is granted. Service connection for a back disability is denied. Service connection for a left ankle disability as secondary to service-connected right ankle disability is denied. Service connection for a bilateral eye disability is denied. Service connection for the residuals of frostbite of the ears (a bilateral ear disability other than hearing loss) is denied. REMAND A remand is required in this case to ensure there is a complete record upon which to decide the issue of TDIU. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2012); Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). Pursuant to the August 2010 decision, the Board noted in the introduction that the issue of tinnitus has been raised by the record but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Since the Board did not have jurisdiction over it, the claim was referred to the AOJ for appropriate action. As of this date, review of the record does not show the AOJ has addressed the claim of service connection for tinnitus. The Board finds that claim is inextricably intertwined with the TDIU claim, thus TDIU must be remanded for readjudication after the requested development. Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran additional VCAA notice as to the issue of service connection for tinnitus, conduct any necessary development, and adjudicate this issue. 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). This issue will not be before the Board unless appealed. 2. Rate the now service-connected right ankle disability. The rating of this disability will not be before the Board unless this issue is appealed. 3. After the completion of any other development deemed appropriate, readjudicate the issue of TDIU (with consideration of the new service connected disability). If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. The Veteran and representative have the right to submit additional evidence and argument on the matter 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 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). ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012). Department of Veterans Affairs