Citation Nr: 1334151 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 07-34 817 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to any herbicide exposure. 2. Entitlement to service connection for skin cancer, to include as due to any herbicide exposure. 3. Entitlement to service connection for coronary artery disease (a heart condition), to include as due to any herbicide exposure. 4. Entitlement to service connection for bilateral peripheral neuropathy, to include as secondary to diabetes mellitus. 5. Entitlement to service connection for erectile dysfunction, to include as secondary to diabetes mellitus. 6. Entitlement to a rating in excess of 10 percent for residuals of multiple fractures of the left great toe. 7. Entitlement to service connection for kidney condition, to include as secondary to diabetes mellitus, type II. 8. Entitlement to service connection for hypertension. 9. Entitlement to service connection for tinnitus. 10. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for bilateral hearing loss. 11. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for asbestosis or other pulmonary disease, to include as due to asbestos exposure. 12. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a right hip condition. 13. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a left foot and ankle condition. REPRESENTATION Veteran represented by: David L. Huffman, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from May 1958 to May 1965. This appeal comes to the Board of Veterans' Appeals (Board) from various rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In August 2010 the Veteran appeared and provided testimony regarding some of the issues on appeal before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. In his June 2013 substantive appeal the Veteran initially requested an additional hearing before the Board to provide testimony regarding the remaining issues on appeal. However in an August 2013 written statement the Veteran's representative withdrew his request for a hearing before the Board. See 38 C.F.R. § 20.704(e). The Board acknowledges that additional evidence was received in June 2013 which was not initially considered by the RO. However, the Board finds this new evidence is not relevant to the issues on appeal and as such the Veteran is not prejudiced by the Board's continued adjudication of the appeal at this time. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of service connection for coronary artery disease, erectile dysfunction, bilateral peripheral neuropathy, diabetes mellitus, and skin cancer were all previously before the Board in January 2011 and were remanded for further development. Specifically, the Board requested updated VA treatment records, private records regarding any and all treatment for skin cancer, and additional attempts to verify the Veteran's alleged service in Thailand and Cambodia. As will be discussed below, the Board finds the remand directives were not substantially completed regarding the additional development for the Veteran's alleged service in Thailand. Accordingly, the Board finds remand is required. See Stegall v. West, 11 Vet. App. 268 (1998). Additionally, as will be discussed, all conditions the Veteran has alleged are secondary to his exposure to herbicides must also be remanded as intertwined issues. Accordingly, the issues of service connection for diabetes mellitus, skin cancers, coronary artery disease, bilateral peripheral neuropathy, erectile dysfunction, kidney condition, and hypertension are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. The evidence does not establish that the Veteran's current tinnitus either began during or was otherwise caused by his military service. 2. The RO denied the Veteran's claim of entitlement to service connection for left foot and ankle condition in an August 2004 rating decision. The Veteran was notified of the decision, but did not file new evidence or a notice of disagreement within one year. 3. Evidence obtained since the time of the August 2004 rating decision does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for a left foot and ankle condition. 4. The RO denied the Veteran's claims of entitlement to service connection for asbestosis and a right hip condition in a March 2006 rating decision. Although the Veteran initially filed an appeal regarding these issues, he withdrew these appeals at his May 2008 hearing before the RO. The Veteran did not file new evidence or file an additional notice of disagreement within one year. 5. Evidence obtained since the time of the March 2006 rating decision does not raise a reasonable possibility of substantiating the claims of entitlement to service connection for asbestosis or a right hip condition. 6. The Veteran's claim of entitlement to service connection for bilateral hearing loss was denied by the Board in a January 2011decision. The Veteran was notified of the decision, but did not seek reconsideration or otherwise appeal the decision. 7. Evidence obtained since the time of the January 2011 Board decision does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral hearing loss. 8. The evidence does not establish that the Veteran's great left toe condition was analogous to moderately severe malunion of the tarsal or metatarsal bones at any time during the period on appeal. CONCLUSIONS OF LAW 1. Criteria for service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). 2. The August 2004 rating decision which denied entitlement to service connection for the Veteran's left foot and ankle condition is final; new and material evidence has not been submitted, and the Veteran's claim is not reopened. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); 38 C.F.R. §§ 3.104(a), 3.156, 20.302, 20.1103 (2013). 3. The March 2006 rating decision which denied entitlement to service connection for the Veteran's asbestosis condition is final; new and material evidence has not been submitted, and the Veteran's claim is not reopened. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); 38 C.F.R. §§ 3.104(a), 3.156, 20.302, 20.1103 (2013). 4. The March 2006 rating decision which denied entitlement to service connection for the Veteran's right hip condition is final; new and material evidence has not been submitted, and the Veteran's claim is not reopened. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); 38 C.F.R. §§ 3.104(a), 3.156, 20.302, 20.1103 (2013). 5. The January 2011 Board decision which denied entitlement to service connection for the Veteran's bilateral hearing loss is final; new and material evidence has not been submitted, and the Veteran's claim is not reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. §§ 3.156, 20.1100 (2013). 6. The criteria for a rating in excess of 10 percent for the left great toe condition have not been met. 38 U.S.C.A. § 1155 (West 2002) ; 38 C.F.R. § 4.1, 4.2, 4.7, 4.73, Diagnostic Code 5283 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection for Tinnitus The Veteran is seeking service connection for several conditions. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. 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). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran is currently seeking service connection for tinnitus. He served on active military duty in the Army and during service his MOS was a combat engineer. The Veteran has consistently stated he was exposed to loud noise during his military service, such as operating heavy equipment. Accordingly, the Board finds the Veteran was exposed to acoustic trauma during his military service. 38 U.S.C.A. § 1154(a). However, noise exposure in the military alone is not grounds for service connection. Rather, the evidence must establish the Veteran currently has tinnitus which was caused by his military noise exposure. The Board finds the evidence establishes that the Veteran currently has tinnitus. At his April 2013 hearing before the Decision Review Officer (DRO) the Veteran testified he experienced a ringing or buzzing in his ears. The Court of Appeals for Veterans Claims (Court) has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). Accordingly the Board finds the Veteran currently has tinnitus. However, as will be discussed, the Board finds the evidence does not establish the Veteran's tinnitus either began during or was otherwise caused by his military service. Service treatment records were reviewed and do not reflect the Veteran sought treatment or made any complaint of any of the symptoms associated with tinnitus during his military service, including ringing or buzzing in his ears. In May 1962 the Veteran sought medical treatment for injury to his left ear following being struck by an automobile. The Veteran was given a cold pack to treat his left ear and records do not reflect the Veteran sought any additional treatment for any ear injury during military service. At his April 1965 separation examination the Veteran's ears were noted to be in normal condition and his hearing was rated H 1 on the PULHES scale. In the accompanying report of medical history the Veteran denied experiencing any trouble with his ears. Accordingly, the Board finds the evidence does not establish the Veteran had tinnitus during his military service. The record reflects that after military service the Veteran worked at a textile mill and aluminum plant where he was routinely exposed to loud noises, frequently without hearing protection. Post-service treatment records were reviewed and do not include any complaint of tinnitus for several years. Instead, in September 2004 and September 2007 audiology consults at VA facilities, the Veteran specifically denied experiencing tinnitus, providing probative evidence against his claim. In December 2011 the Veteran was provided with a VA examination for his tinnitus. The Veteran reported his tinnitus onset "10 years ago." He described tinnitus occurred in both ears on a periodic basis, occurring weekly. The Veteran reported each occurrence didn't last long but was "just annoying." He described a high pitched ringing at a soft volume. The examiner opined the Veteran's tinnitus was not caused by or the result of his military noise exposure. The examiner explained no tinnitus was documented in the Veteran's service treatment records and the Veteran denied experiencing tinnitus in 2004 and 2007 treatment records. The examiner also noted the Veteran also reported his onset of tinnitus as 10 years ago, more than 35 years after he separated from military service. Accordingly the Board finds this examination report is well-reasoned and provides highly probative evidence against the Veteran's claim. Based on the foregoing the Board finds the evidence does not establish the Veteran's current tinnitus either began during or was otherwise caused by his military service. After military service the Veteran denied experiencing tinnitus for several years. According to the Veteran's own testimony in 2011 his tinnitus only began ten years ago, or more than thirty-five years after his separation from military service. Additionally, the record does not include any medical opinion suggesting the Veteran's current tinnitus was otherwise due to his military service. Instead, the record contains a reasoned medical opinion which unequivocally opines the Veteran's tinnitus is not due to his military service. Accordingly, the Veteran's claim for service connection for tinnitus is denied. New and Material Evidence The Veteran is also seeking service connection for bilateral hearing loss, asbestosis, a right hip condition, and a left foot and ankle condition. All four of these conditions were originally denied in an August 2004 rating decision. The Veteran did not submit new evidence or otherwise appeal these issues within one year so the determination became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104(a). However, a previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C.A.§ 5108; 38 C.F.R. § 3.156. New evidence is defined as evidence not previously submitted to agency decision makers. Material evidence means existing 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 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). The preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff'd, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). Therefore, the initial question before the Board in each of these claims is whether new and material evidence has been presented to reopen the claim. The Board is aware that when determining whether the 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). Pursuant to Shade, evidence is considered new if it has not been previously submitted to agency decisionmakers, and it 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. Moreover, the Court explained this standard is intended to be a low threshold. Id. In addition, evidence is presumed to be credible for the limited purpose of determining whether to reopen a claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). At the time of the August 2004 rating decision the evidence of record included the Veteran's service treatment records, statements from the Veteran, VA treatment records through May 2004, and private records from St. Mary's, Dr. L.L., Dr. M.Y.M., and Putnam General Hospital. Since this August 2004 determination, extensive additional evidence has been submitted, including updated VA and private treatment records and testimony by the Veteran at his August 2010 hearing before the undersigned VLJ and an April 2013 hearing before a DRO. This evidence was not previously submitted before the VA before the RO's August 2004 decision and is therefore "new." The Board will address whether the new evidence submitted is material to each of the Veteran's claims in turn. Left Foot and Ankle Condition The Veteran is seeking service connection for a left foot and ankle condition. This claim was previously denied in an August 2004 rating decision. At that time the RO considered evidence that the Veteran currently had a condition with his left foot and ankle. The RO also reviewed the Veteran's service treatment records concerning an automobile accident in May 1962 that resulted in foot and knee pain, as well as evidence establishing the Veteran suffered an injury to his left ankle in a job-related accident after his military service. The RO considered all evidence and determined that the Veteran's current left foot and ankle conditions were not related to his military service. The Board finds that the Veteran's newly submitted evidence continues to reflect that the Veteran has trouble with his left foot and ankle. However, the Veteran's claim was not previously denied for failure to establish he currently had a disability. Rather, his claim was denied for failure to establish his current left foot and ankle condition began during, or was otherwise caused by, his military service. The Board finds the newly submitted evidence does not include any evidence relating the Veteran's left foot and ankle condition to his military service. Therefore the new evidence is not material. The Board notes that the Veteran has stated that pain in his right hip caused him to place more weight on his left foot and ankle, causing the current condition. The Veteran's lay testimony is supported by medical evidence, including the report from the December 2011 VA examiner who opined the Veteran's advanced arthritis in his right hip caused his anatalgic gait. However, as will be discussed below, the Board finds the Veteran's right hip condition is not related to his military service. Because his right hip is not service connected, evidence suggesting the Veteran's left foot and ankle conditions are related to his non-service connected right hip does not serve to establish the Veteran's left foot and ankle conditions are due to his military service or service-connected on a secondary basis. Based on the foregoing, the Board finds the new evidence does not establish that the Veteran's current left foot and ankle conditions began during, or were otherwise caused by, his military service. As such, the Board finds the newly submitted evidence is not material. Because the Veteran has not submitted new and material evidence regarding his current left foot and ankle conditions the Board finds the Veteran's claim for service connection for these conditions is not reopened and remains denied. Asbestosis The Veteran is currently seeking service connection for asbestosis or other pulmonary disease. This claim was previously denied in an August 2004 rating decision for failure to establish the Veteran was exposed to asbestos during military service, or that his current asbestosis was otherwise related to his military service. This claim was again denied in a March 2006 rating decision. Although the Veteran initially filed a substantive appeal regarding this issue, at his May 2008 hearing before the RO the Veteran withdrew his appeal. Accordingly, the March 2006 rating decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104. At the time of the March 2006 rating decision the evidence included all evidence considered in the August 2004 rating decision, the Veteran's lay statements alleging asbestos exposure during military service, VA treatment records through February 2006, the report from the January 2006 VA examination, and updated private treatment records from Putnam General Hospital, St. Francis Hospital, and St. Mary's Medical Center. The RO found that while the new medical evidence showed a diagnosis of asbestosis there was no new evidence which showed exposure to asbestos during service or suggested the Veteran's condition was otherwise related to his military service. Accordingly the RO found new and material evidence had not been submitted and the claim was not reopened. The Board finds the record includes extensive new evidence submitted since the March 2006 rating decision. However, the Board finds this new evidence does not serve to establish the Veteran's currently diagnosed asbestosis began during or was otherwise related to his military service. In fact, the Board finds the new evidence contains highly probative evidence the Veteran's current condition is due to exposure to asbestos after his military service, during his post-service employment. For example, in a newly submitted private medical record from Dr. G.A. at Diagnostic Medical Center in February 1998 the Veteran reported he was exposed to asbestos for 20 years and experienced shortness of breath for the past year and a half. Twenty years before 1998 would be approximately 1968, three years after the Veteran separated from military service. Similarly, in May 2011 Dr. L. A.-A. at Pulmonary Services noted the Veteran had a history of exposure to asbestos while working at Kaiser Aluminum and Textile Mill from 1965 to 1984, after his military service. Accordingly, the Board finds this new evidence does not suggest the Veteran's currently diagnosed asbestosis is due to his military service but instead provides highly probative evidence his condition is due to exposure during his post-service employment. Based on the foregoing, the Board finds the new evidence does not establish that the Veteran's currently diagnosed asbestosis began during, or was otherwise caused by, his military service. As such, the Board finds the newly submitted evidence is not material as it does not address the previously unestablished fact of relationship to military service. Because the Veteran has not submitted new and material evidence regarding his current asbestosis the Board finds the Veteran's claim for service connection for this condition is not reopened and remains denied. Right Hip Condition The Veteran is also currently seeking service connection for a right hip condition. This claim was previously denied in an August 2004 rating decision for failure to establish his current hip condition was related to his military service. In January 2006 the Veteran sought to reopen this claim. In a March 2006 rating decision the RO found no new and material evidence had been submitted and as such the claim was not reopened. The RO explained the new evidence did not show a right hip injury occurred in service or otherwise attributed the Veteran's current condition to his military service. Although the Veteran initially filed a substantive appeal, he later withdrew this appeal at his May 2008 RO hearing. Accordingly the March 2006 rating decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104. At the time of the March 2006 rating decision the evidence of record included the evidence of record at the time of the August 2004 rating decision as well as VA treatment records through February 2006, the report from the January 2006 VA examination, and updated private treatment records from Putnam General Hospital, St. Francis Hospital, and St. Mary's Medical Center. The Board finds the record includes extensive new evidence submitted since the March 2006 rating decision. This evidence shows the Veteran has a right hip condition which continued to deteriorate. In July 2011 his private physician, Dr. D.S., suggested the Veteran would be a good candidate for a hip replacement surgery. However, the Veteran's claim was not previously denied for failure to establish a current condition, but rather for a lack of a nexus to his military service. The Board finds the newly submitted evidence does not serve to establish the Veteran injured his right hip during service or that his current right hip condition was otherwise related to his military service. Instead, this new medical evidence consistently attributed the Veteran's current right hip condition to degenerative arthritis. For example, private x-rays in March 2009 and January 2013 both revealed the Veteran had "severe" degenerative arthritis in his right hip. However, the evidence does not include any medical opinion attributing this arthritis to the Veteran's military service. The Board notes that in his August 2010 hearing before the undersigned VLJ the Veteran asserted that his service-connected left foot condition caused him to limp and put more weight on his right hip, which may have caused his current problems. The Board finds this testimony suggests the Veteran is claiming his right hip condition is secondary to his service-connected left foot condition. However, the mere fact that the Veteran has alleged different theories of entitlement does not obviate the need to have new and material evidence to reopen his claim. Robinson v. Mansfield, 21 Vet. App. 545 (2008). Moreover, the Veteran's left foot condition has been service-connected since April 1998, well before the Veteran filed his initial claim for service connection for his right hip. As such, this theory of entitlement was previously before the RO in reaching their initial August 2004 rating decision. Accordingly, the Board finds this theory of entitlement of service-connection secondary to a long-established service-connected left foot condition does not constitute new and material evidence. Based on the foregoing, the Board finds the new evidence does not establish that the Veteran's current right hip condition began during, or was otherwise caused by, his military service. As such, the Board finds the newly submitted evidence is not material as it does not address the previously unestablished fact of nexus to military service. Because the Veteran has not submitted new and material evidence regarding his current right hip condition the Board finds the Veteran's claim for service connection for this condition is not reopened and remains denied. Bilateral Hearing Loss The Veteran is also seeking service connection for bilateral hearing loss. This claim was previously denied in an August 2004 rating decision for failure to establish his hearing loss was related to his military service. In January 2005 the Veteran sought to reopen his claim. However in a January 2011 decision the Board found the Veteran did not submit new and material evidence and his claim remained denied. The Veteran did not seek reconsideration or otherwise appeal this determination and therefore the January 2011 Board decision is final. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. At the time of the January 2011 Board decision the evidence of record included the Veteran's service treatment records, VA treatment records for hearing loss beginning in April 2004, as well as private treatment records. Since the previous determination by the Board in January 2011 the Veteran was provided with a VA audiology examination in December 2011. This evidence was not previously considered and is therefore new. This report reflects that the Veteran continued to have bilateral hearing loss, a fact that is not in dispute. However, the Board finds this evidence does not serve to substantiate the unestablished fact of nexus to military service. Instead, the VA examiner specifically opined the Veteran's current bilateral hearing loss was not caused by or the result of his military noise exposure. The examiner pointed to the Veteran's normal hearing acuity at separation from military service and post-service occupational noise exposure to support his opinion. Accordingly, the Board finds this new evidence is not material, and instead constitutes probative evidence against the Veteran's claim for service connection. The new evidence does not include any additional evidence suggesting the Veteran's current bilateral hearing loss was related to his military service. The Veteran has also submitted additional testimony in his April 2013 hearing before the DRO regarding his hearing loss. The Veteran reported he had nearly complete loss of hearing in one ear, but "don't remember if it was the right or left." Again, the Veteran's lay testimony establishes he currently has hearing loss, however this is not the reason his claim was previously denied. Accordingly, this new testimony is not new and material as it does not relate to the previously unestablished fact of nexus to military service. Based on the foregoing, the Board finds the new evidence does not establish that the Veteran's current bilateral hearing loss began during, or was otherwise caused by, his military service. As such, the Board finds the newly submitted evidence is not material as it does not address the previously unestablished fact of nexus to military service. Because the Veteran has not submitted new and material evidence regarding his current hearing loss, the Board finds the Veteran's claim for service connection for this condition is not reopened and remains denied. The Board acknowledges that in a June 2013 Statement of the Case the RO found the Veteran submitted new and material evidence regarding this issue and reopened his claim for service connection for hearing loss. However, the question of whether new and material evidence has been received to reopen a previously denied claim goes to the Board's jurisdiction and therefore is adjudicated on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). Therefore, where, as here, the Board determines new and material evidence has not been received then the analysis must end, and what the RO may have determined is in this regard is not relevant. Jackson, 265 F.3d at 1369; Barnett, 83 F.3d at 1383. Increased Rating for Left Great Toe Finally, the Veteran is also seeking an increased rating for residuals of fractures to his left great toe. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's left toe condition is currently assigned a 10 percent rating under Diagnostic Code 5283. 38 C.F.R. § 4.73. This code relates to malunion or nonunion of the tarsal or metatarsal bones. A 10 percent rating is assigned if there is moderate malunion, and a higher 20 percent rating is warranted if there is moderately severe malunion. The current claim was referred to the RO for further development in the January 2011 Board decision. Accordingly all evidence since this time has been reviewed and considered, and relevant evidence is summarized below. In December 2011 the Veteran was provided with a VA examination to evaluate his left great toe. The Veteran reported increased pain in his left foot when he walked or stood, or in cold or damp weather. The Veteran described the pain as aches and throbs. The examiner opined the Veteran did not have malunion of the tarsal or metatarsal bones, but instead opined the Veteran had other foot injuries described as "old multiple fracture hallux left foot." The Veteran opined this condition was of moderate severity. The examiner also noted the left hallux was "much weaker" than the right during dorsiflexion and plantar flexion. The examiner opined the Veteran's condition impacted his ability to work because the more he stood or walked the more his left great toe throbbed and ached. The Board finds this evidence establishes that the Veteran does not currently have malunion of the tarsal or metatarsal bones, but due to his ongoing pain his condition is rated as analogous to malunion of those bones. The examiner opined that the Veteran's continued pain in his left foot was of moderate severity. Accordingly, the Board finds a 10 percent rating for moderate condition continued to be warranted. The results of this examination do not establish the Veteran had a moderately severe condition in his foot, and therefore a higher 20 percent rating is not warranted. At his April 2013 hearing before the DRO the Veteran testified that his left toe condition was "worse" lately. The Veteran reported his condition got "more stiff" over time. He also stated his toe would swell when he stood or walked. The Veteran reported the pain in his left foot went up to his ankle. The Board finds this lay testimony establishes the Veteran continues to have ongoing pain in his left toe. As discussed above, this pain is the basis for his current 10 percent rating. Without considering his complaints of pain no rating would be warranted for his left toe condition. However, although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Furthermore, the Veteran lacks the medical training and expertise to provide a complicated medical opinion assessing the severity of his left toe condition. Accordingly the Board finds the Veteran's lay testimony does not establish a rating in excess of 10 percent was warranted. In regards to the Veteran's lay statements regarding pain in his left foot and ankle, the Board notes the Veteran's separate claim for service connection for his left foot and ankle conditions remains denied, as discussed above. Based on the foregoing the Board finds the evidence does not establish the Veteran had pain similar to moderately severe malunion of his tarsal or metatarsal bones in his left toe at any point during the period on appeal. Accordingly a rating in excess of 10 percent is not warranted. The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially there must be a comparison between the level of severity and symptomatology of the veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the veteran's disability level and symptomatology, a determination must be made whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. However, in this case, the medical evidence fails to show anything unique or unusual about the Veteran's left great toe condition that would render the schedular criteria inadequate. The Veteran's main symptoms were complaints of pain and stiffness. As discussed above, the Veteran's current schedular rating is based on these symptoms. Without considering the Veteran's ongoing pain no rating would be warranted. As such, the Board believes that the schedular rating criteria adequately describes the Veteran's disability picture and even if it does not, it would not be found that his disability met the "governing norms" of an extraschedular rating. Accordingly, referral for consideration of an extraschedular rating is not warranted. The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. The Board acknowledges that the Veteran is no longer employed. He has not, however, alleged that he is unemployable on account of his service-connected left toe condition. Additionally, the VA examiner in December 2011 opined the Veteran's left toe condition impacted his ability to work, but did not suggest this condition prevented the Veteran from working. Thus, the Board finds that Rice is inapplicable since there is no evidence of unemployability due to the Veteran's service connected left great toe condition, currently his only service-connected condition. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that the VCAA notice requirements in regard to new and material evidence claims require VA to send a specific notice letter to the veteran that: (1) notifies him of the evidence and information necessary to reopen the claim (i.e., describes what is meant by new and material evidence); (2) identifies what specific evidence is required to substantiate the element or elements needed for service connection that were found insufficient in the prior denial on the merits; and (3) provides general VCAA notice for the underlying service connection claim. In the present case, all required notice was provided by a letters dated in June, July, and December of 2011, which each informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letters also informed the Veteran how disability ratings and effective dates were established. Finally the June and July 2011 letters provided the additional notice required by Kent to the applicable claims. All issues were then adjudicated in a March 2012 rating decision. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA and private treatment records have been obtained, as have service treatment records. Additionally the Veteran was provided with a hearing before a Decision Review Office in April 2013. As discussed above, the Veteran was also provided with a hearing before the undersigned Veterans Law Judge regarding some of the issues on appeal in August 2010. The Board is aware of the duties of the Veterans Law Judge who conducts a hearing as outlined in Bryant v. Shinseki, 23 Vet. App. 488 (2010). However all issues discussed at the hearing before the undersigned have been remanded for additional development. Accordingly the Board will not address the duties required under Bryant regarding the August 2010 hearing at this time. In regards to the claims for service connection for tinnitus and increased rating for a left great toe condition, the Veteran was provided with VA examinations, the records of which have been associated with the claims file. The Board finds the VA examinations were thorough and adequate and provide a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. The Board notes that in an August 2012 written notice of disagreement the Veteran's representative made several objections asserting the VA failed the duty to assist by failing to provide adequate examinations. However, the representative made the same blanket objection for all claims, and did not include any specific objections to the examinations provided regarding the Veteran's claimed tinnitus and left great toe conditions. Regardless of the representative's general objection, the Board finds these examinations were adequate, as discussed above. In regards to the Veteran's claims for a left foot and ankle condition, asbestosis, right hip condition, and bilateral hearing loss the Board acknowledges that no VA examinations were provided. However, as discussed above the Board has determined no new and material evidence was presented in each of these four claims. VA regulations provide that no VA examination is required unless new and material evidence is presented to reopen a previously adjudicated claim. 38 U.S.C.A. § 5103A(d)(1, 2); 38 C.F.R. § 3.159(c)(4);Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Because the Board has found the Veteran did not submit new and material evidence in any of these four claims, the claims were not reopened and no examinations were required. The Board notes in the August 2012 written notice of disagreement the Veteran's representative also asserted the VA failed the duty to assist by failing to properly examine the Veteran's military and post-service medical records in all claims on appeal. Again, the representative did not include any specific example of medical evidence the VA failed to consider. The Board has carefully considered all evidence of record and has not uncovered any relevant information not previously considered by the RO. Accordingly, the Board finds the VA has considered all medical evidence of record. Based on the foregoing the Board finds the VA has satisfied its duties to notify and assist regarding the Veteran's claims for tinnitus, left foot and ankle condition, asbestosis, right hip condition, bilateral hearing loss, and left great toe condition. Any additional development efforts regarding these claims would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating these issues. ORDER The Veteran's claim for service connection for tinnitus is denied. New and material evidence has not been presented to reopen the Veteran's claims of entitlement to service connection for left foot and ankle conditions, asbestosis, right hip condition, and bilateral hearing loss. Accordingly these claims are not reopened and these appeals are denied. The Veteran's claim for a rating in excess of 10 percent for his service-connected left great toe condition is denied. REMAND Throughout the period on appeal the Veteran has alleged that several of his conditions are due to his exposure to herbicides, to include Agent Orange, during his military service. The Veteran has not alleged, and the evidence does not establish, that he served or otherwise set 'boots on the ground' in the Republic of Vietnam during his military service. Instead, the Veteran has consistently asserted that he was exposed to herbicides, including Agent Orange, during his temporary duty assignment to Thailand. At his August 2010 hearing before the undersigned Veterans Law Judge (VLJ) the Veteran testified that he was stationed in Hawaii for four years during his military service. He asserted during this time he served in Thailand continuously for three 90 day temporary assignments, for a total of approximately 270 days spent in Thailand in and around 1961. The Veteran testified that during his time in Thailand he served as a combat engineer. His duty was primarily to build the base camp, Camp Cobra, near Bangkok. The Veteran stated that in the course of this construction they would first clear out the jungle by spraying herbicides on the vegetation. The Veteran asserted that during this duty assignment he was exposed to herbicide agents. As discussed above, in January 2011 the Board remanded this case for further development regarding the Veteran's claimed service in Thailand. Specifically, the Board requested unit records from the 65th Engineer Battalion for April through December of 1961. However, review of the record reflects such records were only requested through August 1961. Accordingly remand is required to request the unit records for the 65th Engineer Battalion from August through December of 1961. Additionally, the response from the Defense Personnel Records Information Retrieval System (DPRIS) indicates that the 65th Engineer Battalion was assigned to the 25th Infantry Division throughout the period in question. Accordingly, attempt should be made to obtain the unit records from the 25th Infantry Division from April through December of 1961. The Board notes that several of the Veteran's claims cannot be adjudicated until a determination is made regarding whether the Veteran was exposed to herbicide agents during his military service. The claimed conditions of diabetes mellitus, skin cancer, and coronary artery disease may all be related to the Veteran's alleged herbicide exposure. In addition his claimed conditions of peripheral neuropathy, erectile dysfunction, kidney condition, and hypertension may all be secondary to his claimed diabetes mellitus. Accordingly, all these claims must be remanded as intertwined with the additional development regarding alleged herbicide exposure. The Board greatly regrets the additional delay in adjudicating these claims, especially considering the Veteran's current health and financial conditions; however, further development is required. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Send a request to the US Army Center for Military History (CMH) for unit records from the 65th Engineer Battalion from September through December of 1961. 2. Send a request to the National Archives and Records Administration (NARA) for unit records for the 25th Infantry Division for April through December of 1961. 3. If the Veteran's alleged service in Thailand is confirmed, then the RO should fully complete the development outlined in the M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.q and o. 4. The RO should then undertake any other development it determines to be warranted or that is suggested by the results of the above development, to include a VA examination or opinion if necessary. 5. Then, readjudicate the appeal. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 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). 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). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs