Citation Nr: 1326223 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 09-34 879 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an initial increased rating for ureterolithiasis in excess of 60 percent disabling. 2. Entitlement to an initial increased rating for status post fracture of the first phalanx of the right foot (right big toe disability) in excess of 10 percent disabling. 3. Entitlement to an initial increased rating for the status post fracture of the fifth metacarpal (MC) of the dominant right hand (right hand disability) in excess of 10 percent disabling. 4. Entitlement to service connection for a back disability. 5. Entitlement to service connection for a bilateral hearing loss disability. 6. Entitlement to service connection for tinnitus. 7. Entitlement to service connection for asbestosis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The Veteran had active service from October 1964 to 1968 and was discharged from the United States Naval Reserve in 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA), Regional Office (RO), in Muskogee, Oklahoma. In that decision, the RO granted the claims for service connection for the right big toe disability, the right hand disability and calculus of the left ureter. The RO denied claims for service connection for a back disability, a bilateral hearing loss disability, tinnitus and asbestosis. In September 2012, the RO increased the noncompensable ratings for the service-connected right big toe and right hand disabilities to 10 percent each. The noncompensable rating for the service-connected calculus of the left ureter was increased to 60 percent and the name of the disability was changed to ureterolithiasis. The issues of an increased rating for ureterolithiasis and service connection for bilateral hearing loss and tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The right big toe disability is manifested by pain and moderate degenerative changes. 2. The right hand disability is mainly manifested by decreased grip strength. 3. The competent and credible evidence of record does not show a back disability that is related to military service. 4. In correspondence received in April 2012, prior to the promulgation of a decision in the appeal, the Veteran withdrew the appeal for service connection for asbestosis. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 10 percent for the service-connected right big toe disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.21, 4.71a, Diagnostic Codes (DCs) 5003, 5010, 5171, 5284 (2012). 2. The criteria for an increased rating in excess of 10 percent for the service-connected right hand disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.21, 4.71a, Diagnostic Codes (DCs) 5003, 5010, 5230 (2012). 3. A back disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). 4. The criteria for withdrawal of an appeal of service connection for asbestosis by the Veteran have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's increased ratings claims arise from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA for these claims. For the claims for service connection, the Veteran was a letter in April 2008 that provided information as to what evidence was required to substantiate the claim(s) and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. No further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims (Court) has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the service treatment records are silent as to any complaints or treatment for a back disability. Moreover, the post-service evidence does not indicate any current complaints referable to a back disability until several years following separation. Furthermore, the records contains no competent evidence suggesting a causal relationship between a current back disability and active service (for reasons explained below, the Board finds the Veteran not credible regarding a back disability). For all of these reasons, the evidence does not indicate that a back disability may be related to active service such as to require an examination, even under the low threshold of McLendon. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the available service treatment records, Social Security Administration (SSA) records, as well as post-service reports of VA and private treatment and examination. Moreover, the statements in support of the claim are of record, including testimony provided at a May 2013 hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. Further regarding the duty to assist, the Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). At the May 2013 Board hearing, the undersigned elicited information regarding the claims and asked questions aimed at determining whether further information was needed to substantiate them. Neither the Veteran nor his representative has raised complaints regarding the conduct of the hearing. The Board finds the duties to notify and to assist have been met. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Initial increased ratings generally Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Disabilities must be reviewed in relation to their history. Id. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2012); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2012); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2012); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10 (2012). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The ratings discussed here have already been increased once back to the date of the claim. The entire period on appeal is considered for the possibility of staged ratings. Consideration is given to the possibility of separate ratings for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). In this case, the Board does not find that staged ratings are warranted for the disabilities being rated on appeal because they have shown to be stable throughout the appeal period. As explained further below, the Board finds the disabilities being rated have symptoms characteristic of their respective DCs, even where rated analogously. Because the schedular criteria for rating the right hand disability and right big toe disability approximate the disability picture, the Board finds that referral for extraschedular consideration is not required here. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that an increased rating claim encompasses a claim for a total disability rating based on individual unemployability (TDIU), where raised by the record. In this case, the Board finds entitlement to a TDIU in conjunction with the disabilities on appeal has not been raised. 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. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all 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 the 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 (2012). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet App 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2012). Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45 (2012). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14 (2012). The Board must evaluate disabilities under multiple DCs to determine if there is any basis to increase the assigned rating. Such evaluations involve consideration of the level of impairment of a veteran's ability to engage in ordinary activities, to include employment, as well as an assessment of the effect of pain on those activities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2012). DC 5010 is rated under DC 5003, which addresses degenerative arthritis generally. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, DC 5003 (2012). Note 1 of DC 5003 states that the degenerative arthritis ratings will not be combined with ratings based on limitation of motion. A 10 percent rating is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups. A 20 percent rating requires the same, plus occasional incapacitating exacerbations. Right big toe disability The Veteran is currently service-connected for a status post fracture of the right foot first phalanx with right foot strain. A "phalanx" is technically any bone of the fingers or toes. See Dorland's Illustrated Medical Dictionary, p 1444 (31st ed.2007). Currently, the Veteran's disability is rated by analogy under DC 5199-5171 as 10 percent disabling. See 38 C.F.R. § 4.20 (an unlisted condition may be rated under a closely related disease or injury in which the functions affected, anatomical localization, and symptomatology are closely analogous); 38 C.F.R. § 4.27 (unlisted disabilities rated by analogy are coded first by the numbers of the most closely related body part and then "99"). The RO rated the Veteran under DC 5171, which is not appropriate because it involves amputation of the toe and no amputation has been shown. More appropriate ratings are found under the DCs covering the foot. Under DC 5284, a 10 percent rating is assigned for moderate foot injury. A moderately severe foot injury warrants a 20 percent rating. A severe foot injury warrants a 30 percent rating. A note provides that a 40 percent disability evaluation will be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a, DC 5284 (2012). Under DC 5279, metatarsalgia (regardless of whether it is anterior as with Morton's disease, unilateral or bilateral) warrants only a 10 percent rating. 38 C.F.R. § 4.71a, DC 5279 (2012). The words slight, moderate, and severe as used in the various DCs are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6 (2012). The use of terminology such as severe by VA examiners and others is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Here, the Board finds that the Veteran is more properly rated under DC 5284, regarding foot injuries and that under that code section no increase is warranted. X-rays show the Veteran has various degenerative changes in his right foot, not just in his right toe (see October 2010 and August 2011 X-rays). At the July 2011 VA examination, the Veteran reported localized pain in the right foot occurring 3-4 times per week and lasting 2-3 hours. The pain was described as "crushing" and "aching." It was exacerbated by physical activity and was relieved with medication. He stated he twisted his right ankle often which caused falling (his ankle is not service-connected). He had no pain weakness, stiffness, swelling or fatigue at rest, walking or while standing. He reported no overall functional impairment of the right foot. Posture and gait were within normal limits. Examination of the feet did not show signs of abnormal weight bearing or breakdown, callosities or any unusual shoe wear pattern. He did not require assistive device for walking. Further, the right ankle and foot showed no physical symptoms or deformity, and there was no ankylosis. There was active range of motion of the metatarsophalangeal joint of the right great toe. No tenderness to palpation was felt. There was no limitation in standing and walking and he did not require support in his shoes. Right foot X-rays were explained to be normal, an imaging showed degenerative changes, no fracture. The diagnosis noted right foot strain. For usual occupation and activities of daily living, he was to avoid strenuous activity. As at that examination, in an August 2011 VA primary care record, the Veteran seemed to conflate his foot problem with ankle problems, stating that his right foot would turn on him and cause falls. He was scheduled for a podiatry appointment and given a brace, though there was no sign of injury. At a more recent examination in May 2012, the diagnosis was status post first phalanx right foot fracture with moderate degenerative changes of the right foot with calcaneal spurs and calcification within the plantar fascia. The Veteran stated he was diagnosed with a misaligned foot, causing frequent falls. He did not have Morton's neuroma, or metatarsalgia. He used a right foot brace constantly. The 2011 X-ray was noted. This disability did not impact his ability to work. At a February 2013 VA primary care appointment the Veteran was ambulatory without assistive devices. He had a rather obese/arthritic gait favoring the right lower extremity. Although VA records show complaints referable to the right foot at various times, most of the records tend to show these were bilateral foot problems, not just issues due to the right great toe disability. See May 2008 and November 2009 VA primary care records (showing bilateral lower extremity edema and possible early peripheral neuropathy) and October 2010 and September 2011 VA podiatry records (showing bilateral foot pain possible due to obesity and bilateral hammertoes and pes planus). It is further noted that the Veteran has not been consistent on the issue of foot problems; he had many complaints at the Board hearing (Transcript pp 16-20), but the same month told a clinician he had no foot problems (See May 2012 VA diabetic foot record). See Tatum v. Shinseki, 23 Vet. App. 152, 155 (2009) (noting that the Board's failure to discuss a veteran's report of symptoms combined with a failure to address her credibility rendered its statement of reasons or bases inadequate). The Board finds the inconsistency undermines the Veteran's credibility regarding severity of the disability and thus a higher rating is not warranted based on the lay evidence of record. In sum, the evidence supports a finding of moderate foot injury with respect to the right big toe disability in question. The evidence does not support a finding of moderately severe foot injury. Indeed, per the treatment notes, the right toe is largely asymptomatic, although the Veteran does have various other bilateral foot issues that are not service-connected. He does not have metatarsalgia and even if he did, this would not provide an increased rating. 38 C.F.R. § 4.71a, DC 5279. An increase is not warranted under the arthritis DC because two or more major joints or two or more minor joint groups are not involved here. 38 C.F.R. § 4.71a, DC 5003. No staged ratings or increases are warranted for the entire appeal period. Right hand disability Initially, this disability was rated by analogy under DC 5299-5230. 38 C.F.R. §§ 4.20, 4.27. This code states that limitation of motion for the ring or little finger is noncompensable, regardless of whether the Veteran is right or left hand dominant. However, in September 2012, the RO increased the rating of the disability to 10 percent and changed the DC to 5010-5230 (arthritis and limitation of motion of the little finger). As stated, additional regulations apply to disabilities that are rated on the basis of limitation of motion. DeLuca, 8 Vet. App. 202; 38 C.F.R. §§ 4.40, 4.45, 4.59. The metacarpals (MCs) extend between the carpals (wrist bones) and phalanges (fingers). See Dorland's Illustrated Medical Dictionary, p 1160, illustration (31st ed.2007). The MCs are not a moving part, but are in close proximity to the phalanges. Id. The number of applicable DCs is limited. Even traumatic arthritis demonstrated on X-ray is rated on the basis of limitation of motion of the affected joint. See 38 C.F.R. § 4.71a, DC 5003, 5010. At the July 2011 VA examination, an X-ray showed the Veteran had a probable subacute or chronic fracture of the fifth metacarpal. The Veteran reported the following symptoms of the last three fingers of his hand: pain, decreased strength, decreased dexterity, locking, stiffness, swelling and no flare ups. He had no treatment for this condition. He claimed that when he picked something up, he would not actually grasp it and it would fall. The right hand was dominant because he used it to write, eat and comb his hair. The right wrist had no symptoms and was not ankylosed. Range of motion was within normal limits. Joint function was not additionally limited by symptoms after repetitive use. The right hand had a decrease in strength in regard to pulling, pushing and twisting (in contrast, the left hand did not). There was also a decrease in twisting, probing, writing touching and expression. There were no deformities of the digits. Range of motion of the fingers was normal and there was no ankylosis. The right hand X-rays were abnormal; they showed a chronic fracture of the right fifth metacarpal. The diagnosis was a status post fracture of the right fifth metacarpal with right hand strain. At the May 2012 VA examination, the Veteran reported that he could not lift anything with his hand. He reported flare ups, describing occasions where he would pick up a cup of coffee and drop it. The examiner found no limitation of motion of any fingers or the thumb. He had repetitive use on testing with three repetitions. He had no additional limitation of motion for fingers post test or after repetitions. There were no gaps or limitation of extension. He had no functional loss/impairment of any fingers or thumbs. He had no pain on palpation. Muscle strength testing was normal. He had no ankylosis, scars, other pertinent physical findings or assistive devices. The July 2011 X-ray was noted. Regarding functional impact, the examiner noted the Veteran would have difficulty with a forceful grip, making the use of some tools difficult. At the May 2013 Board hearing the Veteran reported he sometimes dropped things with his hand and had pain and flare ups daily upon use. (Transcript, pp 13-14.) His right hand was his dominant hand and it was difficult to write with it. (Transcript, pp 14-15.) The Board finds that even though the right MC is not a moving part, it does have an impact on grip and muscle strength, which are factors that could impact the function of the hand. The right MC is close in proximity to the little finger, which supports the analogous rating. See Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006). Otherwise, the 10 percent rating for the loss of grip strength would be warranted under § 4.40 in consideration of that functional loss. As a result, the current rating of the right hand disability is adequately compensated under DC 5010-5230, addressing arthritis and limitation of motion of the little finger. No staged ratings or increases are warranted for the entire appeal period. Extraschedular considerations For exceptional cases, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be awarded. 38 C.F.R. § 3.321 (b)(1) (2012). In Thun v. Peake, 22 Vet. App. 111 (2011), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe a veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. In this case, the rating schedule adequately address the symptomatology at issue regarding both the right foot and the right hand. Specifically regarding the grip strength issues presented with the hand disorder, there are diagnostic codes accounting for the amputation of individual digits, but the disability picture at issue is not deemed to equate to that level of disability. Service connection- back disability 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. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease; this applies only to diseases that are listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, a back disability generally is not listed and as a result this avenue of entitlement is not available. In adjudicating this claim, the Board must assess the competence and credibility of the Veteran and probative value of the evidence of record in its whole. See Washington v. Nicholson, 19 Vet. App. 362 (2005), 38 C.F.R. § 3.159(a)(2) (2012) (Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person). In determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza, 7 Vet. App. 498. The Veteran claims he had a back disability ever since service (see Board transcript, pp 7-11), but an October 1968 report of medical examination at separation shows a clinical evaluation of the spine was normal and he had no profile. Further, when reporting his disabilities to SSA in 2005, he mentioned obesity and many other problems, but not spine issues. In March 2008, a VA record showed the Veteran claimed he was receiving SSA disability due to his heart and bilateral hearing loss. The earliest mention of a back issue appears to be in a March 2008 VA history and physical examination where the Veteran stated that he had back problems ever since he had a spinal to have kidney stones removed in service. However, in the January 2012 VA problem list no back issues were listed and such an issue is not discussed in the VA records. Although the Veteran is competent to report back pain under 38 C.F.R. § 3.159(a)(2), the Board finds him not credible and his statements not probative because his spine was normal at separation and he did not report it as an issue to SSA in 2005. Caluza, 7 Vet. App. 498. In sum, the service records are absent complaints or treatment referable to the spine and a separation examination was normal. There are no recorded back complaints until several decades after service and no credible statements of continuity of symptoms. (There is also no evidence of arthritis, without which there is no chronic disease under 38 C.F.R. § 3.309(a) and hence no basis for an award on grounds of continuity, per the holding in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). For these reasons, the claim is denied. Service connection for asbestosis The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteran withdrew his claim for service connection for asbestosis in writing April 2012. There remain no allegations of errors of fact or law for appellate consideration. The Board does not have jurisdiction to review the appeal, and it is dismissed. ORDER An increased rating in excess of 10 percent for the service-connected right big toe disability is denied. An increased rating in excess of 10 percent for the service-connected right hand disability is denied. Service connection for a back disability is denied. The claim for service connection for asbestosis is dismissed. REMAND In a September 2012 rating, the RO stated ureterolithiasis was no longer on appeal because the rating was increased to 60 percent. No supplemental statement of the case (SSOC) was issued regarding this initial increased rating. Applicable law mandates that when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Here the maximum benefit has not been awarded. See 38 C.F.R. § 4.115a (2013). As a result, a remand is needed for the issuance of the SSOC, to consider evidence received since the last prior adjudication, to include the Veteran's hearing testimony in May 2013. Regarding the claims based on in-service noise exposure, the evidence shows that the Veteran received whispered voice tests in April, May and July1964 during reserve service. The October 1964 enlistment report of medical examination into active service shows hearing impairment for VA purposes in both ears when ISO converted units are used (see below). HERTZ 500 1000 2000 3000 4000 RIGHT 30 20 40 NA 50 LEFT 15 20 45 NA 30 Hearing loss was noted bilaterally. He was given a physical profile of "2." At separation in 1968 the Veteran again received a 15/15 on a whispered voice test. While no current audiograms are available, the Veteran has been prescribed hearing aids. The Board finds the duty to afford a VA examination has been triggered due to hearing impairment being found in service. Accordingly, the case is REMANDED for the following action: 1. Associate updated VA treatment records with file. If they are unavailable, notify the Veteran and document this fact in the file. See 38 C.F.R. § 3.159(e) (2012). 2. After the above action is completed, schedule the Veteran for a VA examination. The examiner should review the file, to include the April, May, July and October 1964 report of medical examinations as well as the 1968 separation examination and answer the following questions: * Does the Veteran have tinnitus? If so, is there a 50 percent probability or greater that tinnitus had its clinical onset in service or is otherwise related to service? * Does the Veteran have a bilateral hearing loss disability for VA purposes, now or at any time during the claim period? If not, no further response is necessary. * If hearing loss is found on entrance, was it at least as likely as not aggravated (permanently worsened beyond that the natural progression of the disease) by service? o If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. 3. Readjudicate the claims for an initial increased rating for ureterolithiasis in excess of 60 percent disabling and for service connection bilateral hearing loss and tinnitus. If the decision remains in any way adverse to the Veteran, provide him and his representative with a supplemental SSOC. The SSOC should reflect that all records have been reviewed. The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include the applicable law and regulations considered pertinent to the issue remaining on appeal as well as a summary of the evidence of record. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the 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 or by the Court 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). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs