Citation Nr: 1323571 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 08-34 117 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. 3. Entitlement to a rating in excess of 20 percent for residuals of avulsion fracture of the distal metatarsal and hallux valux with Austin bunionectomy of the right foot. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from September 1971 to August 1975. This case comes before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In an October 2006 rating decision, the RO declined to reopen the Veteran's claims of service connection for a bilateral hearing loss disability and denied service connection for tinnitus. In an April 2009 rating decision, the RO, in part, continued a noncompensable disability evaluation (zero percent) for residuals of avulsion fracture of the distal metatarsal and hallux valux with Austin bunionectomy of the right foot. In a June 2009 statement of the case, the RO increased the disability elevation for avulsion fracture of the distal metatarsal and hallux valux with Austin bunionectomy of the right foot to 20 percent effective the date the Veteran's claim for increase was received. The Veteran timely perfected appeals as to all of the issues above. In September 2010, the Veteran presented testimony before the undersigned in a video conference hearing. A copy of the transcript has been associated with the claims folder. In a November 2010 decision, the Board remanded these issues for additional development. The issue of entitlement to service connection for tinnitus 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. In a July 1997 rating decision, the RO declined to reopen a claim of entitlement to service connection for a bilateral hearing loss disability; the Veteran did not timely perfect an appeal of this determination. 2. Evidence received since the July 1997 rating decision does not raise a reasonable possibility of substantiating the claim of service connection for a bilateral hearing loss disability. 3. The Veteran's right foot disability is moderately severe and the symptoms of foot pain with prolonged walking or standing does not more nearly reflect the presence of a severe foot disability. CONCLUSIONS OF LAW 1. The July 1997 RO decision that failed to reopen the claim of entitlement to service connection for bilateral hearing loss is final. 38 U.S.C.A § 7105 (c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1996). 2. New and material evidence has not been received to reopen a claim of entitlement to service connection for a bilateral hearing loss disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. The criteria for an evaluation in excess of 20 percent for residuals of avulsion fracture of the distal metatarsal and hallux valux with Austin bunionectomy of the right foot have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5299-5284 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). 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 evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a notice letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Additionally, in March 2006, the Court held that because the terms "new" and "material" in a new and material evidence claim have specific, technical meanings that are not commonly known to VA claimants, when providing the notice required by the VCAA, it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of the evidence that must be presented. Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006). In this appeal, a December 2010 letter explained what information and evidence was needed to substantiate a claim for service connection and increased ratings, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. Additionally, the December 2010 letter also included information as to new and material evidence consistent with Kent. The December 2010 letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). After issuance of the December 2010 letter, and opportunity for the Veteran to respond, the March 2012 supplemental statement of the case (SSOC) reflects readjudication of the claims. Hence, the Veteran is not shown to be prejudiced by the timing of the latter notice. See Mayfield, 20 Vet. App. at 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of service and VA treatment records. Regarding the new and material evidence claim, the Board notes the record contains the reports of February 2006 and July 2009 VA examinations. Nevertheless, the duty to assist under 38 C.F.R. § 3.159(c)(4) applies to a claim to reopen only if new and material evidence is presented or secured. Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003) (holding that VA need not provide a medical examination or medical opinion until a claim is reopened). As explained below, new and material evidence has not been submitted to reopen the previously disallowed claim. As such, further examination is not required in connection with that claim. Regarding the increased rating claim, the record contains the reports of VA examinations from March 2009, May 2009, November 2009 and January 2011. The most recent VA examination report in January 2011 reflects that the VA examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate evaluation of the Veteran, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. Furthermore, the VA examination reports along with the remainder of the evidence of record contains sufficient findings to rate the Veteran's foot disability under the appropriate diagnostic criteria. As such, the Board finds that the January 2011 VA examination report is sufficient upon which to base a decision with regard to this claim. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran has not identified any outstanding, available evidence, to include medical records, which could be obtained to substantiate the claims. The Board is also unaware of any such evidence. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Claim to Reopen VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). See also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The Veteran sought to reopen his claim in August 2005. In this regard, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2012). In the case of Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that 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. In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. As indicated by the regulation cited above, and by judicial case law, "new" evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not duplicative or "merely cumulative" of other evidence then of record. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In a May 1976 rating decision, the RO denied the Veteran's claim of entitlement to service connection for a bilateral hearing loss disability on the basis that there was no evidence of an incurrence of this condition while he was in active service as the Veteran's hearing was normal at separation. The Veteran appealed this denial to the Board. In a decision dated April 1977, the Board denied entitlement to service connection for a hearing loss disability. The Board's denial was on the basis that there was no evidence of an incurrence of this condition while he was in active service as the Veteran's hearing was normal at separation. This Board decision is final. 38 U.S.C.A. §§ 7103(a), 7104(b) (West 2002); 38 C.F.R. § 20.1100. In June 1984, the Veteran filed a claim to reopen this claim for service connection for a bilateral hearing loss disability. In a June 1984 rating decision, the RO confirmed and continued the denial of service connection for a bilateral hearing loss disability on the basis that no new evidence submitted has shown that the Veteran's current hearing loss disability was related to his active service. The Veteran again appealed this denial to the Board. In a decision dated June 1985, the Board denied entitlement to service connection for a hearing loss disability. In March 1997, the Veteran filed another claim to reopen this claim for service connection for a bilateral hearing loss disability. In a May 1997 and July 1997 rating decisions, the RO confirmed and continued the denial of service connection for a bilateral hearing loss disability on the basis that no new evidence submitted has shown that the Veteran's current hearing loss disability was related to his active service. The Veteran did not file a notice of disagreement with either the May 1997 or July 1997 rating decision within a year following notification of the denials. Thus, they became final. 38 U.S.C.A § 7105 (c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1996). The Veteran attempted to reopen his claim most recently in August 2005. In an October 2006 rating decision and the November 2006 rating decision under appeal, the RO in part, confirmed and continued the denial of service connection for a bilateral hearing loss disability. The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). Here, the last final denial of the claim is the RO's July 1997 rating decision which failed to reopen the Veteran's claim for service connection for a bilateral hearing loss disability on the basis that no new evidence submitted has shown that the Veteran's current hearing loss disability was related to his active service . The evidence at the time of the July 1997 decisions included service and post service treatment record which showed the existence of a current bilateral hearing loss disability. As noted above, however, none of the evidence showed that any current bilateral hearing loss disability was related to service. Evidence received since the July 1997 rating decision includes February 2006 and July 2009 VA examinations as well as numerous private audiological tests. Notably, in the July 2009 VA examination, the examiner determined that the Veteran's current Meniere's disease was not caused by or a result of an in-service car accident 1972. Various private audiological tests demonstrate that the Veteran has bilateral hearing loss. Notably, a November 2006 private treatment report noted diagnosed the Veteran with bilateral sensorineural hearing loss. The physician noted that the Veteran related his hearing difficulties to when he was in the Air Force and worked around jets. However, the physician indicated that he did not know "how much percentage of hearing loss" was due to exposure to loud noises. The Board finds that the evidence received since the July 1997 rating decision is new as it was not of record at the time of the prior denial, but the newly submitted evidence is not material as it is cumulative and redundant in nature of the record in 1997. To the extent that the evidence relates to the reason the claim was previously denied, the new evidence including the February 2006 and July 2009 VA examination reports and private audiological tests do not raise a reasonable possibility of substantiating the claim for service connection. Significantly, competent evidence that the Veteran's bilateral hearing loss disability is related to service or is proximately due to service has not been added to the record. In fact, the July 2009 VA opinion is a negative opinion concerning a relationship between the Veteran's current disability and his service. Negative evidence against a claim cannot constitute new and material evidence as by its nature it does not raise a reasonable possibility of substantiating the claim. Overall, there is no competent evidence or opinion suggesting that the Veteran's current hearing loss disability is in any way related to his service. While the November 2006 private physician noted that the Veteran related his hearing difficulties to when he was in the Air Force and worked around jets, the Board notes that the physician himself did not provide an opinion on the etiology of the Veteran's current bilateral hearing loss. A mere transcription of lay history, unenhanced by any additional medical comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995); see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993) and Elkins v. Brown, 5 Vet. App. 474, 478 (1993). Here, where the claim turns on a medical matter, unsupported lay statements, even if new, cannot serve as a predicate to reopen a previously disallowed claim. See Moray v. Brown, 5 Vet. App. 211, 214 (1993). Thus, the Veteran's new statements submitted since the July 1997 rating decision are insufficient to reopen the claim. The Veteran's request to reopen the previously disallowed claim of entitlement to service connection for bilateral hearing loss is denied because none of the newly submitted evidence pertains to the reasons for the prior denial nor raises the reasonable possibility of substantiating the Veteran's underlying claim. See 38 C.F.R. § 3.156(a) (2012). As the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen the finally disallowed claim of service connection for bilateral hearing loss the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). In sum, absent any new and material evidence showing that a bilateral hearing loss disability is due to service, the claim for service connection for bilateral hearing loss cannot be reopened. See 38 C.F.R. § 3.156(a) (2012). Increased Rating Claim The Veteran essentially contends that he is entitled to an evaluation in excess of 20 percent for his residuals of avulsion fracture of the distal metatarsal and hallux valux with Austin bunionectomy of the right foot. Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. While 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 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). 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. In January 2009, VA received the Veteran's claim for increased disability compensation. The Veteran is service connected at the 20 percent disability level for right foot disability under Diagnostic Code 5299-5284. Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Under Diagnostic Code 5284, a 20 percent disability rating is warranted for moderately severe foot injury; a 30 percent disability rating is warranted for severe foot injury; and a maximum 40 percent disability rating is warranted when there is actual loss of use of the foot. 38 C.F.R. § 4.71a. Normal ranges of motion of the ankle are as follows: Dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees. 38 C.F.R. § 4.71a, Plate II. The terms "mild," "moderate" and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. VA General Counsel opinion VAOPGCPREC 9-98 provides that some foot disorders rated under Diagnostic Code 5284 may affect range of motion and, therefore, warrant consideration of the provisions of 38 C.F.R. § 4.40, 4.45 and 4.59. The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 (2012) and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45 (2012). See, e.g., DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. §4.40 state that the disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. According to this regulation, it is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the Veteran undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. See 38 C.F.R. § 4.40 (2012). The provisions of 38 C.F.R. §4.45 state that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59 (2012). Under VA regulations, separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25 (2012); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). The Veteran underwent a VA examination in March 2009. The examiner noted that the Veteran was currently employed with the United States Department of Agriculture as an assistant supervisor. He presented with reports of pain of 6 to 7 out of 10 and weakness, stiffness, swelling, heat, redness and fatigue. There was no lack of endurance. He reported tingling and stiffness at rest. Tingling and stiffness with cramping when standing and tingling, stiffness, cramping and occasional numbness which varied when he walked. He reported flare-ups of 5 to 6 out of 10 for his right foot which occurred every 3 to 4 days depending on the activity. Precipitating factors were long standing, prolonged walking and the weather. Rest and taking ibuprofen were alleviating factors. His inability to walk correctly and having to use his heels more when he was walking resulted in additional limitation of motion and functional impairment during flare-ups. The examiner noted that it would mere speculation to estimate loss of function or motion during flare-ups. He did not use any crutches, braces or canes but did use corrective shoes and orthotic inserts. He did not use a carbon plate on the right foot and only used orthotics. He indicated that the shoes and orthotics are beneficial. His activities of daily living were not affected but he would wear slippers around the house and not go barefoot. At his job, he did not lift anything over 25 pounds. With cooking, he could only stand for 10 to 15 minutes then he had to sit down. He could clean for 20 minutes but then had to stop and rest. He would only drive 50 to 100 miles before he had to stop and rest. He did not run or play basketball or football anymore. He has a treadmill for the past 3 months and reported that with the movement of the treadmill he was not able to walk a mile on it. He reported that he was unable to stand for prolonged periods of time and actually tried to avoid standing altogether. He could walk 50 to 100 yards. On examination, the right foot was without swelling, redness warmth or rashes. There was tenderness noted to the base of the first metatarsophalangeal joint (great toe). There was positive active motion of the metatarsophalangeal joint of the great toe. He had a 5.5cm x 2m scar from his surgery in the 1980's. The scar was superficial and light in color. It was regular, smooth, stable and without any ulcerations or breakdown. It was not tender to touch and was without any inflammation, edema, induration, keloid or inflexibility. There was no limitation of function based on the scar. Pedal pulse was strong as well as posterior tibia pulse. There was a minute arch noted. His gait was slow and steady. There were no callosities, breakdown or unusual shoe wear patterns. There were no skin or vascular changes noted. Sensation was intact. There were no signs of hammertoes, high arch or claw foot. With ambulation, it was noted that the Veteran ambulated and appears to put more weight to the lateral side of both feet but did not use any assistive devices or limp. The Achilles tendon appeared intact and there was no pain with palpitation. There was no change in alignment with manipulation. There were no degrees of valgus that are correctible by manipulation. There were no other forefoot or midfoot malalignments noted. There was obvious hallux valgus. He declined walking on his tip-toes. The diagnosis was residual of avulsion fracture, distal first metatarsophageal joint of the right foot. The Veteran underwent another VA examination in May 2009. He presented with reports of constant pain in his right foot that was a 6 out of 10 on the pain scale. It could flare up to about an 8 if he was on his feet a lot. He could not really give a frequency for his flare-ups because they depended on his activities. When he sits down, his flare-ups subsided. He also reported that his foot could swell and get red and warm. The foot seemed stiff to him also. The foot fatigued in that walking bothered him after 60 or 90 minutes. Standing for any length of time also bothered him. He had symptoms even at rest when nonweightbearing. He used over the counter medications for treatment which helped some. He also wears a custom orthotic on his right shoe which helped. He did not use any braces or canes. Functionally, he reported that his right foot hurt if he was on his feet. He worked as a supervisor at Job Corps and would have to sit down whenever he had to walk around a lot. He was however able to perform all of his job duties. At home he avoided lifting things. He could bathe and shower but reported that driving bothered him even when using cruise control. After two or three hours, he would take his shoes off when driving or switch drivers. He could not run because of his foot and was also not doing much walking. On examination, he walked without a limp. When barefoot, he tended to walk on the outsides of his feet. His shoes were fairly new and did not exhibit any unusual wear. The examiner did not appreciate any skin calluses that would indicate abnormal weightbearing. He had a custom made orthotic in the right shoe. He had a healed incisional scar over the dorsal aspect of the first metatarsophageal joint of the right foot. He had diffuse tenderness to even fairly light palpitation of the metatarsophageal joint as well as the toes and other metatarsals. There was no increased heat or erythema or any swelling noted. There was no edema. He had mild weakness of great toe dorsiflexion presumably due to pain. Painful motion was exhibited in that he had difficulty walking on his toes. His skin showed no abnormalities. He had normal skin color and temperature. No vascular abnormalities were noted. He did have a somewhat flat foot but his Achilles tendon alignment was normal without any valgus. No other deformities were noted. No hallux valgus was evident at this time. He did have active motion of the metatarsophageal joint of the right great toe. The diagnosis was a right foot avulsion fracture of the first metatarsophageal while on active duty as well as a hallux valgus with Austin bunionectomy. The Veteran underwent a VA examination in November 2009. The Veteran presented with complaints of pain in both feet with the pain in his left foot being worse than the pain in his right foot. He used orthotics in both shoes and wore a soft shoe insole in his right shoe. He has not used any crutches or canes on account of the feet. Functionally, his feet bothered him, especially on the left, after standing for 10 or 15 minutes. He would then have to sit down. He walks a few minutes or 150 to 300 feet until he sits down. If he goes shopping with his wife, he will stand for a little bit and then sit. He worked at Job Corps as a residential assistant supervisor and also did some teaching. He could perform his job functions but did not play any sports with the youth who attend the facility for more than 10 to 15 minutes at a time. If he was playing with his children, he had to stop after 10 to 15 minutes. He could not run because of his feet. Driving bothered his knees then his feet. He also described problems with his balance and cramping of the feet although this has not all been related to his feet problems. On examination, he was alert and in no acute distress. He walked without a limp. Inspection of the feet showed no acute or chronic swelling or deformity at the great toe joints. There was no increased heat or erythema and no swelling or edema noted. There was no evidence of abnormal weight bearing. He walked without a limp and there was no evidence of any foot atrophy of the calves. His shoes did not exhibit unusual wear nor did his feet. He did not have any abnormal calluses. The right foot was nontender to palpitation. He could walk on his heels and his right toes. There were no skin or vascular abnormalities noted. He had normal pedal pulses and normal skin color and temperature. He did have a mild degree of flat foot but the examiner did not appreciate any abnormal alignment of the Achilles tendon or pain on foot manipulation. No residual hallux valgus was identified. He had active motion of the metatarsophageal joint of the right foot. The diagnosis was right distal first metatarsal avulsion fracture which was treated on active duty. No residuals were identified. X-rays were negative for any findings related to the fracture. The Veteran also had hallux valgus of the right great toe which was treated with a bunionectomy with the records showing a good surgical result. The Veteran underwent his most recent VA examination in January 2011. He reported that since his last examination in November 2009, he had not suffered any injuries to his right foot and has not had any hospitalizations or surgeries. It was noted that he underwent an Austin bunionectomy of the right great toe in April 1986. He currently presented with complaints of pain in his right foot, ankle and great toe on a daily basis. He reported that this pain radiated up his left to the knee, hip and back. He reported flare-up pain when using his foot more than usual. He reports that he got flare-up pain at work at the end of the day when he has been on his feet all day long. The frequency of his flare-ups depended on his activities. His daily pain complaint was most consistent with a 3 to 5 out of 10 type pain. His flare-up pain was most consistent with a 6 to 7 out of 10 type pain. He did complain of having swelling, heat and redness in his foot that he was currently experiencing. However, on examination the examiner did not find any swelling, heat or tenderness in the right foot or ankle. To evaluate the Veteran's loss of range motion and function in his right large toe when he was having flare-ups or loss of function would be mere speculation on the examiner's part. The Veteran had not used any crutches or any other walking aids. He did however use a brace that had built-in support both medially and laterally to prevent inversion and eversion of the ankle. He had custom orthotics which were designed to prevent inversion of the ankle. He complained of having weakness on inversion and eversion of the ankle. He also had a brace that prevented swelling of the foot and ankle. The Veteran worked at Job Corps and his job entailed him checking on Job Corps applicants. He had to walk up and down 5 flights of stairs each day and had to do walks on the grounds of the facility. He took 15 minute breaks whenever he could get them. He used his car to make the visits instead of walking whenever it was possible. He estimated that he lost 30 days in the past year seeing care from doctors for his right foot disability but he had not taken any sick leave for any days other than when he was seeing his doctors. He reported that when driving a car he went up to about 20 miles and then had to stop and get out and stretch his feet. As a result, his wife did the driving if possible. He also noted that in the morning it took him about 2 hours to get up to his usual speed. He was able to do his own hygiene and if necessary, his own cooking. He did activities at his job because he had to though he did them with pain because he did not want to lose his job. Pain in his foot began after walking one block but he could walk up to a mile but would have pain for the remainder of the day. On examination, the right foot was without swelling, edema or deformity. He had a healed incision over the right first metatarsophalangeal joint. There was no increased heat or redness of the foot noted. His shoes and feet were without evidence of abnormal weightbearing. His gait was without limp and there was no evidence of atrophy of his calves. Palpitation of the right foot was with complaint of pain on palpitation of the instep area and on palpitation of the medial inferior malleoli area. Palpitation of the plantar aspect of the foot was with complaint of tenderness on palpitation of the medial sole area. These complaints of tenderness were accompanied by slight wincing on moderate pressure of these areas. His pedal pulses and dorsalis pedis pulses were 2+ bilaterally on the right and left foot. He did have slight flattening of his arch on weightbearing of the right foot. Ligament testing by drawer sign was negative. There was no evidence of laxity of the ligaments of the ankle. Manipulation of the ankle was without evidence of laxity on inversion and eversion. On manipulation of the Veteran's right large toe, he was with complaint of tenderness at 20 degrees plantar flexion and at 15 degrees dorsiflexion. Manipulation of the second, third, fourth and fifth toes were without evidence of pain or loss of range of motion. There was no malalignment of the Achilles tendon with the heel. No residual hallux valgus was noted. He did have active range of motion of the right toe. The diagnosis was right distal first metatarsal eversion fracture, fracture healed, with residual pain; and hallux valgus, right great toe, treated with bunionectomy with good surgical results. The examiner noted that the Veteran was able to work at his job but did have pain. Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against an evaluation in excess of 20 percent for right foot disability. The lay and the medical evidence reflect that the Veteran's right foot disability is manifested by reports of weakness and tenderness and flare-ups of pain due to walking or ambulation. The Board finds that severe impairment is not shown because the Veteran has significantly retained function of his right foot. There are no complaints or findings for impaired propulsion, strength, or coordination. The Veteran does not use a cane or other assistive device for ambulation. Although there is lay evidence of him being unable to run, the Veteran reported he could walk up to 1 mile, that he did not require regular medical care, and that he had some pain relief with his regular use of orthotic shoe inserts and medication on an as needed basis. While the Veteran had some interference with work to include having to sit down whenever he had to walk around a lot, the examiners have indicated no interference with employment as he was able to perform all of his job duties. To the extent that the Veteran has pain and limited foot function due pain along with some interference with activities and work due to foot pain, the Board finds that the current 20 percent disability evaluation contemplates these factors. See DeLuca, supra. Additionally, a higher evaluation is not warranted under any other potentially applicable provision of the rating schedule. Other provisions relating to the foot are Diagnostic Code 5277 (bilateral weak foot); Diagnostic Code 5278 (clawfoot); Diagnostic Code 5279 (anterior metatarsalgia); and Diagnostic Code 5280 (unilateral hallux valgus); Diagnostic Code 5281 (unilateral, severe, hallux rigidus); Diagnostic Code 5282 (hammer toe); and Diagnostic Code 5283 (malunion or nonunion of tarsal or metatarsal bones). As these conditions are not shown on any examinations, these Diagnostic Codes are not for application and do not provide a basis for increase. 38 C.F.R. § 4.71a, Diagnostic Codes 5276-5283. While the Veteran is competent to report that his disability is worse than presently evaluated, whether a disability has worsened sufficiently to meet the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence. Although the Veteran believes he meets the criteria for a higher disability rating, his complaints and the medical findings do not meet the schedular requirements for an evaluation in excess of 20 percent, as explained and discussed above. As the preponderance of the evidence is against the claim for an increased rating, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has considered the question of whether an extraschedular rating may be appropriate for the Veteran's service-connected residuals of avulsion fracture of the distal metatarsal and hallux valux with Austin bunionectomy of the right foot disability. See Bagwell v. Brown, 9 Vet. App. 157 (1966). Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent period of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.21(b) (1) (2012). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. The Veteran has not identified any factors which may be considered to be exceptional or unusual, and the Board has been similarly unsuccessful. There is no evidence in the medical records of an exceptional or unusual clinical picture. The record demonstrates that the Veteran has not required hospitalization as a result of his service-connected residuals of avulsion fracture of the distal metatarsal and hallux valux with Austin bunionectomy of the right foot disability. Further, the record does not demonstrate any other reason why an extraschedular rating should be assigned. Accordingly, the Board therefore has determined that referral of the case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b) (1) is not warranted. ORDER As new and material evidence has not been received, reopening of the claim for service connection for a bilateral hearing loss disability is denied. Entitlement to a rating in excess of 20 percent for residuals of avulsion fracture of the distal metatarsal and hallux valux with Austin bunionectomy of the right foot is denied. REMAND Following a review of the Veteran's claims file, the Board finds that further development is required prior to the adjudication of the claim for service connection for tinnitus. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A (d) (West 2002). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The threshold for finding a link between current disability and disease or injury in service is low. McLendon v. Nicholson, 20 Vet. App. 79 (2006). If the medical evidence of record is insufficient, or, in the opinion of the Board, of doubtful weight or credibility, the Board is always free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. However, it is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Veteran contends that he has a current tinnitus disability that is the result of his noise exposure during service. He specifically claims that he was exposed to noise as he was in the Air Force and worked around jets engines. A May 1976 audiological evaluation, less than a year after the Veteran's separation from service, noted that the Veteran admitted to occasional tinnitus and dizziness. Results of the hearing evaluation revealed normal to near normal hearing. Recent VA medical records have provided a diagnosis of tinnitus. Additionally, the Veteran has conceded in-service noise exposure. The Board notes that the Veteran has undergone VA examinations that addressed his hearing loss disability and his Meniere's disease, he has yet to undergo a VA examination that specifically addressed the etiology of his tinnitus disability. Given the facts noted above, the Board finds that the evidence currently of record is insufficient to resolve the claim for service connection for tinnitus, and that further medical examination and opinion in connection with this claim is warranted. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c) (4). The Board finds that a medical opinion, based on full review of the record and supported by stated rationale, is needed to fairly resolve the claim on appeal. See 38 U.S.C.A. § 5103A(d)(2) (West 2002 & Supp. 2012). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disability on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. The Veteran should be scheduled for a VA audiology examination for an opinion as to whether there is at least a 50 percent probability or greater (at least as likely as not) that he has tinnitus as a result of active service. The examiner should solicit a detailed history of any symptoms or treatment during active service and of the continuation of any such symptoms after service. Reasons and bases should be provided for all conclusions. 3. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if 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). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs