Citation Nr: 1325676 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 10-00 159 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a lumbar strain, including as secondary to service-connected right and left knee disabilities. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a bilateral eye disorder. 4. Entitlement to an evaluation in excess of 10 percent for left patella chondromalacia. 5. Entitlement to an evaluation in excess of 10 percent for right patella chondromalacia. 6. Entitlement to a compensable evaluation for residuals of a right little finger injury. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran served on active duty from July 1987 to June 1991. These claims come before the Board of Veterans' Appeals (Board) on appeal of a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran requested and was schedule for a hearing before a Decision Review Officer. However, he failed to appeal for the hearing and his hearing request is therefore construed as withdrawn. Other than an Appellant's Brief, in which the Veteran's representative elaborates on prior contentions, VA's paperless claims processing system (Virtual VA) includes no additional pertinent documents for consideration in support of these claims. The claims of entitlement to service connection for tinnitus, entitlement to service connection for a lumbar strain, including as secondary to service-connected right and left knee disabilities, entitlement to service connection for a bilateral eye disorder, entitlement to an evaluation in excess of 10 percent for left patella chondromalacia and entitlement to an evaluation in excess of 10 percent for right patella chondromalacia 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. In a rating decision dated July 1997, the RO denied the Veteran entitlement to service connection for chronic lumbar syndrome, including as secondary to service-connected right and left knee disabilities, and a bilateral eye disorder. 2. The Veteran did not appeal this denial. 3. The evidence received since July 1997 is neither cumulative nor redundant of the evidence previously of record and, when considered with the evidence previously of record, raises a reasonable possibility of substantiating the claim for service connection for a lumbar strain, including as secondary to service-connected right and left knee disabilities. 4. The evidence received since July 1997 is neither cumulative nor redundant of the evidence previously of record and, when considered with the evidence previously of record, raises a reasonable possibility of substantiating the claim for service connection for a bilateral eye disorder. 5. Residuals of the Veteran's right little finger injury include a swan neck deformity, palpable tenderness, slight hyperextension and locking of the proximal phalangeal (PIP) joint, decreased strength on opposition of the thumb and the small finger, and mildly increased pain on repetitive range of motion testing pain. CONCLUSIONS OF LAW 1. The July 1997 rating decision denying the Veteran entitlement to service connection for chronic lumbar syndrome, including as secondary to service-connected right and left knee disabilities, and a bilateral eye disorder, is final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1997). 2. New and material evidence has been received to reopen a claim of entitlement to service connection for a lumbar strain, including as secondary to service-connected right and left knee disabilities. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. New and material evidence has been received to reopen a claim of entitlement to service connection for a bilateral eye disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 4. The criteria for entitlement to a 10 percent evaluation for residuals of a right small finger injury are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.10, 4.40, 4.45, 4.56, 4.59, 4.71a, 4.73 Diagnostic Codes 5227, 5230, 5309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law that it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet.App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet.App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law as well as the controlling decisions of the appellate courts. VA's Duties to Notify and Assist Upon receipt and prior to consideration of most applications for VA benefits, VA is tasked with satisfying certain procedural requirements outlined in the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (Court) has mandated that VA ensure strict compliance with the provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA and its implementing regulations provide that VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate a claim. As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). When a claimant is trying to establish entitlement to service connection for a disability, the VCAA notice must apprise him of all five elements of the claim, including: (1) veteran status; (2) existence of disability; (3) a connection between service and disability; (4) degree of disability; and (5) effective date of disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Under section § 5103(a) and in claims for increased ratings, the law requires that VA notify the claimant that to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37, 43 (2008). The Court further held that, if the Diagnostic Code (DC) under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. The Court also held that the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant DCs, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation, including competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Id. at 43-44. However, the Court for the Federal Circuit (Federal Circuit) later held that the notice described in 38 U.S.C.A. § 5103(a) need not be veteran specific and that daily life evidence was not statutorily mandated. The Federal Circuit thus vacated the Court's decision to the extent it required notification of alternative DCs and the need to submit potential daily life information on the basis that such evidence was not needed for proper claims adjudication. Vazquez-Flores v. Shinseki, 580 F.3d 127 (Fed. Cir. 2009). In the context of a claim that has been previously denied, the notice must inform the claimant of the evidence and information necessary to reopen the claim and of the evidence and information necessary to establish entitlement to the underlying claim for the benefit sought by the claimant. Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006). In informing the claimant of what evidence would be considered new and material, VA must examine the basis for the denial in the prior decision and identify the evidence that would substantiate the element(s) of a service connection claim found lacking in that denial. Id. Ideally, the RO should provide the claimant VCAA prior to its initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). However, if the RO does not, or provides the notice in a timely manner but it is inadequate or incomplete, the RO can effectively cure this error by providing any necessary VCAA notice and then readjudicating the claim in a statement of the case (SOC) or supplemental SOC (SSOC). In such a case, the intended purpose of the notice is not frustrated, rather preserved, and the claimant is given ample opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, instead, must be judged on a case-by-case basis. As the pleading party attacking the agency's decision, the Veteran has the burden of proof of not only establishing error but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his claim, i.e., more than harmless. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist a claimant in obtaining evidence necessary to substantiate a claim, including, in certain cases, by offering a medical examination or obtaining a medical opinion, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b), (c). In the context of a claim to reopen, VA's duty to assist is limited to the following: (1) making reasonable efforts to obtain non-Federal department or agency records; (2) obtaining records in the custody of a Federal department or agency; and (3) obtaining VA and military records. 38 C.F.R. § 3.159(c)(1), (2) and (3). Notice The RO provided the Veteran VCAA notice on his claims by letters dated May 2008, July 2008, August 2008, October 2008, April 2009 and September 2010. The RO sent two of the letters after initially adjudicating the Veteran's claims. Those letters are therefore untimely. The RO cured this timing defect later, however, by readjudicating these claims in a September 2010 SSOC. Mayfield v. Nicholson, 499 F.3d at 1317. These letters satisfy the content requirements noted above. They inform the Veteran of the evidence needed to substantiate his claims and identify the type of evidence that would best do so. They include all necessary information on disability ratings and effective dates in the event service connection and/or an increased evaluation is granted. They notify the Veteran of the bases of the last denials of his claims for service connection for chronic lumbar syndrome and a bilateral eye disorder. They identify the evidence the RO requested and/or received in support of the Veteran's claims and the evidence it was responsible for securing. They indicate that the RO will make reasonable efforts to assist the Veteran in obtaining any other outstanding evidence provided he identifies its source(s), but that it is the Veteran's responsibility to ensure VA's receipt of all pertinent evidence. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of these claims, and is not prejudiced by any technical notice deficiency along the way, including the previously mentioned untimely notices. See Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir., 2004). With regard to the claims being decided, he does not assert that VA failed to comply with VCAA's notice provisions. Assistance The RO also satisfied its duty to assist the Veteran in the development of these claims by trying to secure and associate with the claims file all documents the Veteran identified as being pertinent to his claims, including service and post-service private treatment records. The RO also afforded the Veteran a VA examination of his right hand, during which an examiner discussed the severity of the Veteran's right little finger disability. When VA affords a claimant a VA examination or obtains a VA opinion, it must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Unless the claimant challenges the adequacy of the examination or opinion, however, the Board may assume, and need not affirmatively establish, the adequacy of the examination report and the competence of the examiner. Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that, although the Board is required to consider issues independently raised by the evidence of record, the Board is still entitled to assume the competency of a VA examiner and the adequacy of a VA opinion without demonstrating why the medical examiner's report is competent and sufficiently informed); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged). Id. Even when the claimant challenges a VA examination or opinion, the Board may assume the competency of the VA medical examiner, including nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), he or she is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Cox v. Nicholson, 20 Vet. App. 563 (2007). The Veteran does not assert that there are any other outstanding records that must be obtained in support of these claims. He also does not assert that the report of the VA right hand examination is inadequate. In sum, VA has developed the issue decided here, and the Board will direct further development upon remand. II. Analysis Application to Reopen Previously Denied Claims The Veteran seeks service connection for low back and bilateral eye disabilities and argues that he developed the low back condition secondary to his service-connected right and left knee disabilities (knee problems either caused or aggravated his back problems); and that his claimed eye disorder was due to eye strain he experienced during service while working on computers. He alleges that due to his knee problems, he was forced to change his gait, causing strain on his lower back. The Veteran points out that he submitted a medical opinion from Dr. Cowan in 2008 relating his low back disability to his service-connected knee problems and argues that this evidence is new and material. He also points out that his service treatment records annotate vision problems caused by the strain of working with computers. He alleges that during service, he worked in a semi-darkened room where the computer screen images had a black background and bright green font. The Veteran has submitted lay statements, including from R.B., a co-worker of seven years, and R.G., an acquaintance of four years. According to R.B., the Veteran's ability to squat, kneel and bend over has diminished over the past few years, making it apparent that his knees are causing him severe pain. According to R.G., he has noticed a dramatic change in the Veteran's gait associated with his knee and back pain. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Generally, to prevail on the issue of service connection, there must be competent evidence of: (1) a current disability; (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between the in-service injury or disease and the current disability. See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The RO previously denied the Veteran's claims for service connection for chronic lumbar syndrome and a bilateral eye disorder in a rating decision dated July 1997. In deciding these claims, the RO considered the Veteran's service treatment records, which include no low back or eye findings, and a report of VA examination, which include a low back diagnosis, but no eye complaints or findings. The RO found that the evidence did not show that chronic lumbar syndrome, etiology unknown, is related to the Veteran's active service or service-connected knee disabilities. The RO explained that the VA examiner was uncertain as to the etiology of the back pain and unable to say whether it was related to the knee conditions. The RO also found that there was no evidence of a bilateral eye condition during service or on VA examination. Based on these findings, the RO concluded that these conditions were not service connected. The RO notified the Veteran of his appellate rights - although its notification did not specifically refer to an eye disability, it attached the rating decision discussing the claimed disability. The Veteran did not appeal the denial and the RO did not receive new and material evidence within one year of that decision. See 38 C.F.R. § 3.156(b). The July 1997 rating decision is thus final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1997). Under the provisions of 38 C.F.R. § 3.156(c), at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to service records that are related to a claimed in-service event, injury, or disease. See 38 C.F.R. § 3.156(c)(i). Here, no service department records have been obtained since July 1997. Therefore, VA need not reconsider these claims. The Veteran attempted to reopen these claims by written statement received in April 2008. A claim that is the subject of a prior final denial may be reopened if new and material evidence is received with respect to that claim. Once a claim is reopened, the adjudicator must review it on a de novo basis, with consideration given to all of the evidence of record. 38 U.S.C.A. § 5108 (West 2002); Evans v. Brown, 9 Vet. App. 273 (1996). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with the 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 prior 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). When determining whether submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The phrase "raise[s] a reasonable possibility of substantiating the claim" enables rather than precludes reopening, consistent with 38 C.F.R. § 3.159(c)(4), which does not require new and material evidence on each unproven element of a claim.' Id. at 120. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The evidence that is considered to determine whether new and material evidence has been received is the evidence associated with the claims file since the last final disallowance of the appellant's claim on any basis. Evans, 9 Vet. App. at 273. This evidence is presumed credible for the purposes of reopening an appellant's claim, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). The evidence that has been associated with the claims file since the RO's July 1997 rating decision includes private treatment records, a VA examination report, an August 2004 letter from Dr. Cowen, the Veteran's and his representative's written statements, and written statements from R.G. and R.B. This evidence is new. It is neither cumulative, nor redundant of the evidence previously of record. It is also material. By itself or when considered with the evidence previously of record, it relates to an unestablished fact necessary to substantiate these claims. The Veteran's written statements reflect his belief that he has a lumbar spine disability that is related to his service-connected right and left knee disabilities and a bilateral eye disability that is related to his in-service duties. R.B's and R.G.'s statements reflect that the Veteran experiences knee and back pain. The Veteran's representative's statements point out the favorable evidence of record. With the exception of that which pertains to the lumbar spine, the statements were not of record at the time of the prior denial. The post-service private treatment records and VA examination reports include diagnoses of low back and bilateral eye disabilities. The August 2004 letter from Dr. Cowan indicates that the Veteran's knee problems may have been a precipitating factor in the development of the Veteran's back pain as well as an aggravating factor in his healing process. The absence of evidence of an opinion relating the back problems to the Veteran's knee disabilities and the absence of evidence of a bilateral eye disability formed the bases of the RO's previous denial of the claims of entitlement to service connection for chronic lumbar syndrome and a bilateral eye disability. Given that this type of evidence is no longer absent from the claims file, the Board must reopen the Veteran's claims. It may not, however, decide these claims as reopened because, as explained below, VA has not adequately assisted the Veteran in the development of these claims. Claim for an Increased Evaluation The Veteran seeks a compensable evaluation for residuals of his right little finger injury. He claims that these residuals include a deformity of the finger, a locking sensation through the PIP joint, decreased grip strength, a loss of some dexterity and intermittent sharp pain and periodically necessitate the use of a metal splint and aspirin or Tylenol. He asserts that the weakness that is causing the decreased grip strength may be viewed as functional loss, entitling the Veteran to a ten percent evaluation for his right little finger disability. The Board has considered the Veteran's contentions in conjunction with all medical documents of record, and finds that the evidence supports the assignment of a 10 percent evaluation for the Veteran's right little finger disability. As discussed below, symptoms of that disability include weakness, which is causing functional loss in the form of a decreased grip. Disability ratings are determined by evaluating the extent to which a service-connected disability adversely affects a Veteran's 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 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Where an award of service connection for a disability has been granted and the assignment of an initial rating for that disability is disputed, separate ratings may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). In claims for increases, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). A disability may require re-evaluation in accordance with changes in a Veteran's condition. In determining the level of current impairment, it is thus essential that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The examination on which an evaluation is based must adequately portray the anatomical damage, and the functional loss, with respect to all of these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant 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. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. §§ 4.40, 4.45 (2012). As regards the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: less movement than normal; more movement than normal; weakened movement; excess fatigability; incoordination, impaired ability to execute skilled movements smoothly; and pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995) (holding that VA's review of a service-connected musculoskeletal disability must include an assessment of the functional impairment caused by that disability and that, if the service-connected disability involves a joint rated based on limitation of motion, adequate consideration must be given to functional loss due to pain under 38 C.F.R. § 4.40, and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45); see also Johnson v. Brown, 9 Vet. App. 7 (1996) (provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the DCs predicated on limitation of motion). With any form of arthritis, painful motion is an important factor. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful, unstable, or maligned joints due to healed injury are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2012). A compensable rating under DC 5003 and § 4.59 for painful motion is assignable where arthritis is established by X-ray findings, even if there is no actual limitation of motion of the affected joint. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). In such a case, painful motion is considered limited motion even though a particular range of motion is possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). Limitation of motion may be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003 (2012). Consideration of 38 C.F.R. § 4.59 is not limited to cases involving arthritis, thereby providing for the possibility of a rating based on painful motion of a joint, regardless of whether the painful motion stemmed from joint or periarticular pathology. Burton v. Shinseki, 25 Vet. App. 1 (2011). Later that month, however, the Court explained that pain must actually affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination and endurance to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In other words, although pain may cause functional loss, pain, itself, does not constitute functional loss and is just one factor to be considered when evaluating functional impairment. Id. Schedular Evaluation The RO granted the Veteran service connection for residuals of a right little finger injury in a September 2007 rating decision. It assigned this disability an initial noncompensable evaluation. In a January 2009 rating decision, the RO continued the evaluation assigned this disability, pursuant to DC 5227. DC 5227 provides that a 0 percent evaluation is assignable for unfavorable or favorable ankylosis of the major or minor ring or little finger. 38 C.F.R. § 4.71a, DC 5227 (2012). Ankylosis is immobility and consolidation of a joint due to disease, injury or surgical procedure. Lewis v. Derwinski, 3 Vet. App. 259 (1992) (memorandum decision); Nix v. Brown, 4 Vet. App. 462, 465 (1993); Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). Also potentially applicable to this claim are DCs 5003, 5010, 5216-5223, 5230 and 38 C.F.R. § 4.56, DC 5308 (2012). DC 5010 provides that arthritis due to trauma is to be rated as degenerative arthritis. 38 C.F.R. § 4.71a, DC 5010. DC 5003 provides that degenerative arthritis shown by x-ray studies is to be rated based on limitation of motion of the affected joint. When limitation of motion is noncompensable under the appropriate DC, but there is at least some limitation of motion, a 10 percent evaluation is assignable for each group of minor joints affected. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003 (2012). DCs 5216-5223 provide for a 10 percent evaluation, at least, for ankylosis of multiple fingers. 38 C.F.R. § 4.71a, DCs 5216-5223 (2012). DC 5230 provides that a 0 percent evaluation is assignable for limitation of motion of the major or minor ring or little finger. 38 C.F.R. § 4.71a, DC 5230 (2012). The rating of muscle disabilities is governed by 38 C.F.R. § 4.56. An open comminuted fracture with muscle or tendon damage will be rated as a severe injury of the muscle group involved unless, for locations such as in the wrist or over the tibia, evidence establishes that the muscle damage is minimal. 38 C.F.R. § 4.56(a). A through-and-through injury with muscle damage shall be evaluated as no less than a moderate injury for each muscles damaged. 38 C.F.R. § 4.56(b). For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, and impairment of coordination and uncertainty of movement. 38 C.F.R. § 4.56(c). Evaluation of muscle injuries as slight, moderate, moderately severe, or severe is based on the type of injury, the history and complaints of the injury, and objective findings. 38 C.F.R. § 4.56(d). A slight disability of muscles is described as a simple wound of muscle without debridement or infection. The service department records would demonstrate a superficial wound with brief treatment and return to duty. Healing would be shown as having been with good functional results. No cardinal signs or symptoms of muscle disability would be shown and the scar would be minimal with no evidence of fascial defect, atrophy, or impaired tonus. There would be no impairment of function or metallic fragments retained in muscle tissue. Id. A moderate disability of the muscles may result from through and through or deep penetrating wounds of relatively short track by a single bullet or small shell or shrapnel fragment. The absence of the explosive effect of a high velocity missile and of residuals of debridement or of prolonged infection also reflects moderate injury. The history of the disability should be considered, including service department records or other sufficient evidence of hospitalization in service for treatment of the wound. Consistent complaints on record from the first examination forward of one or more of the cardinal symptoms of muscle wounds, particularly fatigue and fatigue-pain after moderate use, and an effect on the particular functions controlled by the injured muscles should be noted. Evidence of moderate disability includes entrance and (if present) exit scars which are linear or relatively small and so situated as to indicate relatively short track of missile through muscle tissue, signs of moderate loss of deep fascia or muscle substance or impairment of muscle tonus, and of definite weakness or failure in comparative tests. Id. A moderately severe disability of the muscles is characterized by evidence of a through and through or deep penetrating wound by a high velocity missile of small size or a large missile of low velocity, with debridement or with prolonged infection, or with sloughing of soft parts, or intermuscular cicatrization. Service department records or other sufficient evidence showing hospitalization for a prolonged period in service for treatment of a wound of severe grade should be considered. Records in the file of consistent complaints of cardinal symptoms of muscle wounds should also be noted. Evidence of unemployability due to an inability to keep up with work requirements may be considered. Objective findings should include relatively large entrance and (if present) exit scars so situated as to indicate the track of a missile through important muscle groups. Indications on palpation of moderate loss of deep fascia, or moderate loss of muscle substance or moderate loss of normal firm resistance of muscles compared with the sound side may be considered. Tests of strength and endurance of the muscle groups involved may also give evidence of marked or moderately severe loss. Id. A severe disability of the muscles is characterized by evidence of through and through or deep penetrating wound due to a high velocity missile, or large or multiple low velocity missiles, or explosive effect of a high velocity missile, or shattering bone fracture with extensive debridement or prolonged infection and sloughing of soft parts, intermuscular binding and cicatrization. Service department records or other sufficient evidence showing hospitalization for a prolonged period in service for treatment of a wound of severe grade should be considered. Records in the file of consistent complaints of cardinal symptoms of muscle wounds should also be noted. Evidence of unemployability due to an inability to keep up with work requirements may be considered. Id. Objective evidence of severe disability includes extensive ragged, depressed, and adherent scars of skin so situated as to indicate wide damage to muscle groups in the track of a missile. Palpation shows moderate or extensive loss of deep fascia or of muscle substance or soft or flabby muscles in wound area. Muscles do not swell and harden normally in contraction. Tests of strength or endurance compared with the sound side or of coordinated movements show positive evidence of severe impairment of function. Id. DC 5308 governs ratings of injuries to Muscle Group VIII. Muscle Group VIII comprises the muscles arising mainly from the external condyle of the humerus. The functions of these muscles include extension of the wrist, fingers and thumb and abduction of the thumb. Under this DC, a noncompensable evaluation is assignable if impairment of this muscle group is slight. A 10 percent evaluation is assignable if impairment of this muscle group is moderate. A 20 percent evaluation is assignable if impairment of this muscle group is moderately severe. A 30 percent evaluation is assignable if impairment of this muscle group is severe. 38 C.F.R. § 4.73, DC 5308 (2012). During service in 1989, the Veteran jammed his right little finger, dislocating, fracturing and resulting in instability of the PIP joint. This injury necessitated surgery, or a right little finger PIP flexor digitorum superficialis tenodesis. Thereafter the Veteran healed well with splinting, but developed a palpable knot under his surgical scar, which was not considered to be a neurologic lesion, and a swan neck deformity secondary to volar ligament laxity. On post-surgical evaluations of his right hand, medical professionals noted that the Veteran was right-hand dominant and had mild weakness of his right hand grip likely secondary to disuse and volar instability. Doctors recommended no further surgery as the abnormalities were only minimally affecting the Veteran's activities. Since discharge from service, the Veteran has undergone three VA examinations, during which he reported that he was right-hand dominant and used that hand to write and feed and groom himself. He also reported that that finger occasionally locked and caused pain and had resulted in some loss of dexterity. VA examiners confirmed the swan neck deformity and continued weakness in the right little finger, in May 1997, causing minimal diminished grip and, in October 2008, causing decreased strength of the right wrist and when opposing the thumb and little finger. The August 2000 examiner also noted slight hyperextension of the PIP joint. The October 2008 examiner noted palpable tenderness involving the PIP joint, some locking of that joint and a mild increase of pain on repetitive motion. None of the three examiners noted any limitation of motion of the right little finger or of any other finger affected by the right little finger disability, including during flare-ups or on repetitive use, and x-rays of the right hand revealed no arthritis. Given these findings, a compensable evaluation is not assignable under DCs 5003 and 5010 (absence of arthritis) or DCs 5216-5223 or 5230 (no limitation of motion). There is also no evidence of an associated muscle injury, which might entitle the Veteran to an increased evaluation under 38 C.F.R. § 4.56, DC 5308. A note to that DC indicates that "the hand is so compact a structure, that isolated muscle injuries are rare, being nearly always complicated with injuries of bones, joints, tendons, etc." This note directs that isolated hand injuries should be rated "on limitation of motion, minimum 10 percent." 38 C.F.R. § 4.73. Again, however, no medical professional has noted limitation of motion of the right hand/finger, including during flare-ups or on repetitive use. As previously indicated, weakness, which is evident in this case, is as important as limitation of motion and a part that becomes painful on use must be regarded as seriously disabled. Functional loss may be due to multiple factors, including such weakness. 38 C.F.R. §§ 4.40, 4.4. In this case, the decreased grip strength of the Veteran's right wrist and on opposition of the thumb and right little finger represents functional loss, albeit minimal, which is due to the weakness. This loss entitles the Veteran to an increased 10 percent schedular evaluation under 38 C.F.R. §§ 4.40, 4.45. Extraschedular Evaluation In certain circumstances, a claimant may be assigned a higher initial or increased evaluation on an extraschedular basis. The question of whether such an evaluation may be assigned on such a basis is a component of a claim for a higher initial or increased evaluation. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign a rating on an extraschedular basis in the first instance, when the question is raised either by the claimant, or reasonably by the evidence of record, the adjudicator must specifically decide whether to refer the claim to the Chief Benefits Director of VA's Compensation and Pension Service under 38 C.F.R. § 3.321 for consideration of the matter. Barringer v. Peake, 22 Vet. App. 242 (2008). He is authorized to approve the assignment of an extraschedular evaluation if the claim "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1) (2012). If the claimant or the evidence raises the question of entitlement to a higher initial or increased evaluation on an extraschedular basis, as a threshold matter, the Board must determine whether the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. This requires comparing the level of severity and symptomatology of the service-connected disability with the established criteria found in the rating schedule pertaining to that disability. Thun v. Peake, 22 Vet. App. 111, 118 (2008). If the criteria reasonably describe the level of severity and symptomatology of the disability, the disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate and no referral is necessary. Id. If the criteria do not reasonably describe the level of severity and symptomatology of the disability, the disability picture is not contemplated by the rating schedule and the assigned schedular evaluation is inadequate. The Board must then determine whether the exceptional disability picture involves other related factors such as those outlined in 38 C.F.R. 3.321(b)(1) as "governing norms", including "marked interference with employment" and "frequent periods of hospitalization". Id. The Veteran has not raised, nor does the evidence suggest the question of entitlement to an increased extraschedular for his right little finger disability on an extraschedular basis. Referral for consideration of this matter is thus not necessary. ORDER New and material evidence having been received, the claim of entitlement to service connection for a lumbar strain is reopened. New and material evidence having been received, the claim of entitlement to service connection for a bilateral eye disorder is reopened. A 10 percent evaluation for residuals of a right small finger injury is granted. REMAND Prior to adjudicating the claims of entitlement to service connection for tinnitus, a lumbar strain and a bilateral eye disorder and entitlement to evaluations in excess of 10 percent for left patella and right patella chondromalacia, additional development is necessary. The case is REMANDED for the following action: 1. After securing any necessary authorization, obtain and associate with the claims file records of the Veteran's reported physical therapy for knee symptoms, back treatment by Dr. Michael Reed, and treatment for his December 1, 2003 motor vehicle accident. If the records are not obtainable (or none exist), the Veteran should be notified and the record clearly documented. 2. After the above has been completed, schedule the Veteran for a VA ear diseases examination with an appropriate clinician. The purpose of the examination is to determine whether the Veteran has tinnitus that is related to his active service, to include noise exposure. The following considerations will govern the examination: a. The claims folder, and a copy of this remand, must be available to the examiner for review in conjunction with the examination. The examiner MUST take a complete history from the Veteran as to any pre-service, in-service and post-service noise exposure and the onset, nature, and progression of the alleged ringing in his ears. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner must state this, with a fully reasoned explanation. All appropriate tests and studies should be accomplished. b. The examiner is advised: * The Veteran alleges that he was exposed to noise during service either while working as a computer machine operator with mainframe computers that constantly emitted a high-pitched tone. * Service treatment records confirm that, during service, the Veteran was exposed to hazardous noise routinely and had a hearing loss profile. * There is no diagnosis of tinnitus of record. However, the Veteran is competent to report ringing in his ears as such a symptom is capable of lay observation. c. After a review of the examination findings and the entire evidence of record, the examiner must answer the following questions: Given the Veteran's assertion of in-service noise exposure, is the Veteran's tinnitus related to service or to any other service-related disorder? An explanation must be provided for any opinion or conclusion expressed. 3. Schedule the Veteran for a VA low back examination with an appropriate clinician. The purpose of the examination is to determine whether the Veteran has a lumbar spine disability that is related to his active service, or to his service-connected right and left knee disabilities. The following considerations will govern the examination: a. The claims folder, and a copy of this remand, must be available to the examiner for review in conjunction with the examination. The examiner MUST take a complete history from the Veteran as to the onset, nature, and progression of all of his low back symptoms and the effect of the December 1, 2003 motor vehicle accident on those symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner must state this, with a fully reasoned explanation. All appropriate tests and studies should be accomplished. b. The examiner is advised: * The Veteran alleges that his low back disability is either related to or aggravated by his service-connected right and left knee disabilities. * X-rays taken in June 1997 and a report of VA examination conducted in May 1997 include diagnoses of chronic lumbar syndrome, minimal scoliosis and degenerative changes. * Dr. Cowen's August 2004 letter indicates that the Veteran entered his office on December 3, 2003 with mid and low back pain, reporting that he had had a motor vehicle accident on December 1, 2003. * The Veteran also reported that he had had knee problems prior to the accident. After a course of treatment, Dr. Cowan concluded that the Veteran's knee problems may have been a precipitating factor in his development of low back pain as well as an aggravating factor in his healing process. c. After a review of the examination findings and the entire evidence of record, the examiner must answer the following questions: (i) Does the Veteran currently have a low back disability? (ii) If so, is it related to his period of active service? (iii) If not, is it due to or aggravated by his service-connected right and left knee disabilities? (iv) What is the significance of the Veteran's December 1, 2003 car accident with regard to his low back disability? An explanation must be provided for any opinion or conclusion expressed. 4. Schedule the Veteran for a VA knee examination with an appropriate clinician. The purpose of the examination is to determine whether, as alleged, the Veteran's service-connected right and left knee disabilities have worsened, thereby entitling him to evaluations in excess of 10 percent The following considerations will govern the examination: a. The claims folder, and a copy of this remand, must be available to the examiner for review in conjunction with the examination. The examiner MUST take a complete history from the Veteran as to the nature of all of his right and left knee symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner must state this, with a fully reasoned explanation. All appropriate tests and studies should be accomplished. b. The examiner is advised: * The Veteran alleges that he has knee instability, which potentially entitles him to additional evaluations separate from the 10 percent evaluations currently assigned. Treatment records dated since 2006 and a report of VA examination conducted in October 2008 establish that the Veteran wears a knee brace. c. After a review of the examination findings and the entire evidence of record, the examiner must answer the following questions: (i) Does the Veteran currently have right or left knee instability? (ii) If not, what is the purpose of him wearing a knee brace? (iii) Does the Veteran have recurrent subluxation or ankylosis of the knee or limitation of flexion or extension? (iv) Is any recurrent subluxation or lateral instability slight, moderate or severe? (v) In degrees, how severe is any limitation of motion? (vi) To what extent (in degrees) does the Veteran have additional functional loss, including more severe motion loss, during flare-ups and/or on repetitive use? (vii) Does the Veteran's right or left knee disability markedly interfere with employment? (vii) Do the Veteran's right and left knee disabilities in conjunction with his other service-connected disabilities render the Veteran unemployable? An explanation must be provided for any opinion or conclusion expressed. 5. After completion of the above and any other development deemed necessary, the RO should review and readjudicate the claims on appeal, including in the first instance, the reopened claims for service connection for a lumbar strain and bilateral eye disability. If any such action does not resolve each claim to the Veteran's satisfaction, the RO must provide the Veteran and his representative a SSOC and an appropriate period of time should be allowed for response. Thereafter, the case should be returned to this Board for appellate review. 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). 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). ______________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs