Citation Nr: 1339360 Decision Date: 12/02/13 Archive Date: 12/13/13 DOCKET NO. 09-27 947 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a right foot disability. 4. Entitlement to service connection for residuals of cuts to the middle and index fingers of the right hand. 5. Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from November 1976 through October 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Veteran has perfected a timely appeal as to all issues adjudicated in that rating decision. In his substantive appeal, received by VA in August 2009, the Veteran requested a Board hearing in this matter. Pursuant to that request, a Travel Board hearing was scheduled at the Milwaukee RO in July 2011. Notices regarding the date, time, and place of the scheduled hearing were mailed to the Veteran in June and July 2011. However, on the day before the scheduled hearing, the Veteran notified VA that he was unable to appear at the scheduled hearing. Although he initially reserved his ability to request a new hearing date in the future, in September 2011, he advised VA that he did not wish to reschedule his hearing. This matter now comes to the Board for its de novo consideration. The issues of the Veteran's entitlement to service connection for 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 Veteran has a callus located on his right fifth toe; however, the callus has not been shown as being related to foot problems experienced by the Veteran during service, or to any other injury or illness sustained by the Veteran during service. 2. The Veteran has a residual scar on his right middle finger which has been shown as being related to laceration injuries sustained by the Veteran during his active duty service. 3. The Veteran has a lumbar spine disc protrusion; however, this disorder has not been shown as being related to back problems experienced by the Veteran during service, or to any other injury or illness sustained by the Veteran during his active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right foot disability have not been met. 38 U.S.C.A. §§ 1103, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2013). 2. The criteria for service connection for residuals of cuts to the middle and index fingers of the right hand have been met. 38 U.S.C.A. §§ 1103, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2013). 3. The criteria for service connection for a low back disability have not been met. 38 U.S.C.A. §§ 1103, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VA's notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In relation to the Veteran's claims for service connection for a right foot disability, residuals on his right index and middle fingers, and low back, an August 2007 pre-rating letter notified the Veteran of the information and evidence needed to substantiate his claims. Consistent with Dingess, this letter also notified the Veteran that a disability rating and an effective date are assigned where a disability is determined to be service-connected. After affording the Veteran reasonable opportunity to respond, his claims were adjudicated in the RO's July 2008 rating decision. Thus, because the VCAA notice that was provided before the Veteran's service connection claims were adjudicated was legally sufficient, VA's duty to notify has been satisfied. VA has also fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claims. The Veteran's service treatment records, identified and relevant private treatment records, and lay statements expressed in his claims submissions have been associated with the claims file. Although the Veteran reported in a September 2007 statement that he had received treatment for his back in 1983 at the VA Medical Center in Atlanta, Georgia, repeated requests by the RO to that facility in October 2007 and December 2008 has revealed that no records corresponding to treatment for the Veteran at that facility exist. Further, the record does not indicate any other locations where records for such treatment might exist. In view of the foregoing, further efforts to locate the Veteran's VA treatment records would appear to be futile. As such, VA is not obliged to expend further efforts to locate the Veteran's VA treatment records at this time. 38 C.F.R. § 3.159(c)(2). Also, the Veteran was afforded VA examinations of his right foot, right hand, and spine in April 2008 to determine the nature and etiology of each of those claimed disabilities. These examinations, along with the other evidence of record, are fully adequate for the purposes of determining the nature and etiology of the Veteran's knee disorders. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. II. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). If certain diseases, such as arthritis, become manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of such disease during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). For such disabilities, a claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A veteran is considered to have been in sound condition upon entry into service, except as to defects, infirmities, or disorders noted on the entrance examination, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease preexisted service and was not aggravated during service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2013). However, the Court has held that the presumption of soundness does not apply to congenital defects because such defects are not considered diseases or injuries within the meaning of 38 U.S.C.A. §§ 1110 and 1111. See Quirin v. Shinseki, 22 Vet. App. 390, 396-97 (2009); see also Terry v. Principi, 340 F.3d 1378, 1385-86 (Fed. Cir. 2003); Winn v. Brown, 8 Vet. App. 510, 516 (1996). Congenital defects or malformations are not considered diseases or injuries for VA compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9 (2013). As such, a congenital or developmental defect generally may not be service-connected as a matter of law; however, service connection may be granted if such a defect is subject to, or aggravated by, a superimposed disease or injury during service which results in additional disability. See VAOPGCPREC 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990); see also Winn, 8 Vet. App. at 51; Natali v. Principi, 375 F.3d 1375, 1380 (Fed. Cir. 2004). Service connection may also be established for disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b). A. Right Foot In support of his claim for service connection for right foot disabilities, the Veteran alleged in his August 2007 claim that he has been experiencing ongoing right foot problems since November 1979. The Veteran stated that he did not receive medical treatment for his right foot problems and that he simply learned to live with them. In describing his current foot problems, the Veteran stated that he has right foot cramps which cause him to fall to the ground. He also alleged that he has developed a callus on his right foot, which he believed was secondary to wearing undersized steel-toed boots during service. In his November 2008 Notice of Disagreement, the Veteran added that he was having pain in the joint of his right fifth toe. According to the Veteran, he complained that his boots did not fit on several occasions during service, and also stated that he went to sick call on a number of occasions due to his foot problems while stationed at Hunter Army Airfield in 1977. Service treatment records in the claims file include the Veteran's November 1976 enlistment examination report, which reflects normal clinical findings. An accompanying November 1976 Report of Medical History reflects that the Veteran expressly denied having any prior or current history of swollen or painful joints; cramps in his legs; bone, joint, or other deformity; loss of finger or toe; or foot trouble. Somewhat consistent with the Veteran's contentions, the subsequent service treatment records show that the Veteran was treated for a right foot laceration in November 1979. In July 1982, he was also treated for complaints of knots on his feet that had been present for four days, as well as a rash that had been present for two weeks. Upon examination, he was diagnosed with a corn on the big toe of his right foot and insect bites on both feet. Subsequent treatment records do not indicate any further in-service treatment related to his right foot. A physical examination performed during the Veteran's September 1982 separation examination revealed a tender scar over the right hallux, but no other objective findings or subjectively reported complaints related to the right foot. Indeed, post-service treatment records do not reflect any treatment or noted subjective complaints pertinent to the Veteran's right foot. During an April 2008 VA examination, the Veteran again reported the onset of right foot problems as being in 1979. He reported that after service, he worked as a metal worker, machinist, and aluminum machine mechanic for 26 years and was required to wear factory steel-toed work boots. The in-service laceration was noted by the VA examiner, but it was indicated that the Veteran could no recall having a scar on the right foot. The Veteran continued to allege to the VA examiner that his current foot problems were caused by the boots that he wore during service. A physical examination of the right foot was essentially normal except for an observed one centimeter callus on the right fifth toe. The callus was nontender, did not appear to be painful, and did not cause any loss of motion of the right foot or toes. It was also noted that no scar or sensation loss was present in the right foot. X-rays were not taken as the examiner noted that there was nothing in the Veteran's history which suggested the necessity for x-rays. The examiner diagnosed a right foot callous, but opined that it was likely due to the Veteran's age and years of post-service employment. Upon consideration of the foregoing evidence, the Board finds that the Veteran is not entitled to service connection for a right foot disability. The Board first notes that the Veteran has not received a diagnosis for any right foot disabilities other than the right fifth toe callus noted during the April 2008 VA examination. As noted above, the Veteran was treated for right foot problems during service, to include an unspecified laceration on his right foot and a corn on the big toe of the right foot. Nonetheless, the weight of the evidence simply does not show that the Veteran's current right fifth toe callus is related in any way to the documented in-service right foot problems or to any other injury or illness sustained by the Veteran during his active duty service. In that regard, the service treatment records are silent for any findings or diagnoses pertinent to the right fifth toe, nor do they indicate that the Veteran's right foot laceration or right big toe corn in any way involved the right fifth toe. The Board also notes that a physical examination performed at the time of the Veteran's separation examination in September 1982 did not reveal any abnormalities in the Veteran's right foot; hence, the most contemporaneous records would appear to suggest that the right foot laceration and right big toe corn resolved during service. Indeed, apparently based upon this in-service history and the Veteran's reported post-service occupational history of wearing steel-toed work boots for 26 years, the VA examiner concluded that the Veteran's right fifth toe callus was likely related to his post-service activities. This opinion is based upon the examiner's review of the claims file and an understanding of the medical history which is consistent with the Board's own review and understanding of the record. The only other evidence in the record concerning the etiology of the Veteran's right knee disorder is the Veteran's lay assertions that he has experienced continuous right foot cramps and problems in his right fifth toe since service, and hence, that his current right foot problems must be related to service. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In that regard, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder). In view of the foregoing law, the Veteran is competent to provide probative statements as to when symptoms related to his right foot began and how long they have continued. Nonetheless, the Board finds that the credibility of the Veteran's assertions is undermined by inconsistencies in the record. In that regard, the Board notes that the Veteran's assertions are contradicted by the absence of any noted right foot complaints in the service treatment records subsequent to July 1982, and by the absence of any noted subjective complaints or objective right foot findings during his September 1982 separation examination. The Board is cognizant that the separation examination did reveal a tender scar on the foot; however, the Veteran reported to the VA examiner that he could not recall a scar of the foot, and the VA examiner was unable to identify any current scar. In this regard, the Board is mindful that it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence, but the Board may still consider the absence of contemporaneous medical evidence as a relevant factor in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Mindful of the same, the Board also notes that the absence of any evidence of subjective complaints related to the right foot over the period from the Veteran's separation, when considered in conjunction with the absence of objective findings during the Veteran's separation examination, despite the fact that the foot was clearly examined in light of the noted scar, would also weigh against the credibility of the Veteran's assertions concerning the continuity of his right foot symptoms. For the foregoing reasons, the Board finds that the Veteran's assertions that he has experienced continuous foot problems dating back to his active duty service are not credible and assigns far greater probative weight to the VA examiner's negative April 2008 opinion. Overall, the preponderance of the evidence is against the Veteran's claim of service connection for a right foot disorder. Accordingly, this claim must be denied. In reaching this determination, the Board again acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is inapplicable in this case because the preponderance of the evidence is against the Veteran's claims. See Gilbert, 1 Vet. App. at 55; 38 U.S.C.A. § 5107(b). B. Residuals of Cuts on the Right Middle and Index Fingers In his claim, the Veteran alleged that he cut his fingers during service in September 1982 while working at the mess hall at Fort Bragg, North Carolina while attached to the 19th Replacement Center. He reported that he currently experiences loss of feeling in his middle finger and that he has difficulty with using either finger. Similar to his claimed right foot disability, the Veteran admitted that he has not received treatment for his fingers and stated that he had simply been living with this disorder. In his November 1976 Report of Medical History, the Veteran reported a pre-service medical history which included fractures of the second and third fingers in 1974; however, no history of pre-service cuts or lacerations. A clinical examination performed during the November 1976 enlistment examination did not reveal any abnormalities in the Veteran's right hand or right middle and index fingers. The subsequent service treatment records reflect that the Veteran sustained multiple injuries to his hands and fingers during service; however, are unclear as to whether the Veteran's right middle and index fingers were injured. In that regard, an August 1982 record states that the Veteran was treated for a laceration over the middle phalanx of one of his fingers after it was smashed between a refrigerator and a wall. X-rays of the finger were normal, and the laceration was treated with stitches. Records from follow-up treatment later that month indicate that the dressing was changed for a laceration on the third finger of the left hand. In September 1982, the Veteran was treated for ongoing and intermittent sharp pains and spontaneous bleeding of a deep cut on the fifth finger of his right hand. During his separation examination later that month, however, the examining physician noted lacerations over the right middle and fourth fingers. It is unclear from the service treatment records as to whether the treatment noted from August through September 1982, and those noted in the September 1982 separation examination, reference the same injury or are indicative separate injuries to different fingers. Nonetheless, given the fact that no abnormalities were noted on the Veteran's right middle and index fingers during his enlistment examination, and given that abnormalities on those fingers were seen during the Veteran's separation examination, the evidence supports the conclusion that the Veteran did sustain laceration injuries to his right middle and index fingers during his active duty service. Post-service treatment records reflect that the Veteran sustained multiple work-related lacerations and crushing injuries to the fingers on both hands throughout the course of his post-service employment. In that regard, the post-service records reflect injuries to the Veteran's right fifth finger in July 1997 and had surgery for a work-related left long finger injury in September 2005. Directly pertinent to the Veteran's claimed right middle and index finger, a private April 1990 record from Dr. K.R.G. shows that the Veteran sustained a crush injury to his right index finger which resulted in residual stiffness of the PIP and DIP joints. The Board notes, however, that these records do not show the presence of any lacerations of cuts on either the right middle or right index finger. During an April 2008 VA examination, the Veteran reported disabilities relating to residual scars on his right index and middle fingers, which reportedly resulted from cuts sustained during service while "horsing around with French knives as a cook." He recalled that he did not receive treatment for the cuts to his index finger during service, however, he did receive stitches on his middle finger. Regarding his current symptoms, the Veteran reported loss of motion of the right index finger DIP joint and that his right index and long finger "feel more like leather than the other finger tips and pulp." On review of the claims file, the examiner noted a pertinent medical history that is essentially consistent with that noted above. An examination of the right index finger revealed completely normal sensation and function. Range of motion and strength of the finger were full. An examination of the right middle finger revealed a scar on the palmar surface, measuring 17 millimeters by 0.5 millimeters. The examiner did not observe any functional numbness, tenderness, or loss of tissue or foreign body sensation. Overall, the examiner diagnosed a normal healed right index laceration and a normal healed right long finger laceration with no functional residual. Despite the absence of any objective findings other than the scars themselves, the examiner opined that any claimed residuals to lacerations during service are less likely than not related to the Veteran's in-service lacerations, and is more likely related to life events prior to and since service. Based upon the foregoing evidence, the Board finds that the Veteran is entitled to service connection for residuals, to include scars, of cuts to the middle and index fingers of the right hand. As discussed above, the service treatment records show that the Veteran did sustain lacerations on his right middle and index finger during service. Although the post-service records show that the Veteran has sustained further lacerations to his hands, none of these involved the right middle or right index finger. Although the evidence also shows that the Veteran did sustain a crushing-type injury to his right middle and right index fingers in April 1990, there is no evidence of any post-service lacerations to either finger which might have resulted in the residual scars noted in the April 2008 VA examination. Thus, to the extent that the Veteran's residuals of the in-service lacerations to his right middle and right index fingers have resulted in current scars on both fingers, the Veteran is entitled to service connection for those residuals. Thus, this appeal is granted. C. Low Back In support of his claim for service connection for a low back disability, the Veteran alleged in his claim that he has had a low back condition since November 1979, during his active duty service. He stated that, as a cook during service, he was frequently required to lift heavy supplies, and hence, appears to attribute his claimed ongoing back problems to such service. The Veteran's November 1976 enlistment examination revealed normal spine findings. In his accompanying Report of Medical History, the Veteran expressly denied having any prior or current history of swollen or painful joints; bone, joint, or other deformity; recurrent back pain; neuritis; or paralysis. No pre-service history of any back problems or treatment is indicated in the enlistment examination report or the Report of Medical History. Subsequent service treatment records show that the Veteran was treated for low back pain over the course of his service. In November 1979, he was seen for low back pain that had been ongoing for three days. Demonstrated thoracolumbar motion was within normal limits. Apparently based on performed blood tests, the Veteran was diagnosed with nephritis. An undated service treatment record from 1982 shows that the Veteran was treated at that time for ongoing low back pain that had reportedly been continuing for two years. Upon examination, the Veteran was diagnosed at that time with a muscle strain. A spine examination performed during the Veteran's September 1982 separation examination revealed normal findings. Post-service treatment records do not reflect any subjective complaints, objective findings, or treatment related to the Veteran's back until November 1998. At that time, the Veteran admitted for emergency treatment at Colquitt Regional Medical Center for a low back injury that was reportedly sustained while the Veteran attempted to perform a wheelie on his bike. The Veteran stated that his back "snapped" during the incident and that he subsequently experienced pain while moving his legs. X-rays of the thoracic and lumbosacral spine were normal. During follow-up visits in December 1998 and January 1999, the Veteran continued to report ongoing back pain which was diagnosed as a lumbar strain. A subsequent MRI performed in January 1999 revealed the presence of an L4-5 central disc protrusion. Subsequent records are silent for back complaints or treatment until June 2002, at which time, the Veteran returned to Colquitt Regional Medical Center for treatment after feeling a pop in his back five days before while attempting to lift a 20-30 pound steel object. The Veteran reported a history of a back injury 4 years before with recurrent problems since that time. At that time, no specific diagnosis was given other than "low back pain." In June 2003, the Veteran received private treatment from Dr. M.J.K. for a reported muscle pull injury in his low back which occurred two days earlier. By the Veteran's own admission, he lifted a lot of heavy objects and his back went out once every two to two and a half years. Notably, he did not report any in-service incidents in relation to his back, and did not mention any history of continuous or ongoing back pain. A spine examination performed at that time revealed tenderness over the lumbosacral spine musculature, and the Veteran was diagnosed again with a lumbar strain. In September 2004, the Veteran admitted to Nathan Littauer Hospital for complaints of ongoing low back pain. An examination at that time revealed tenderness upon palpation over the paraspinal of the lumbar spine bilaterally. Spasm was noted, as well as marked loss of thoracolumbar motion. During a follow-up visit in one month later, in October 2004, the Veteran explained that he had been having low back pain since taking a recent flight in a small aircraft. Once again, a low back strain was diagnosed. Concurrent with his treatment at Nathan Littauer Hospital, the Veteran was also followed for his back complaints by Dr. M.L. November 2004 records reflect that the Veteran reported that he had injured his back the previous Wednesday; however, alleged that he had a longterm history of back problems. The Veteran did not specify that this history dated back to his active duty service. An examination of the spine at that time continued to reveal tenderness over the lumbosacral spine on palpation and percussion and decreased thoracolumbar motion with complete inability to perform any forward flexion. Lumbosacral spine x-rays revealed straightening of the spine alignment with slight dextroscoliosis. Consistent with the previous January 1999 study discussed above, a repeat lumbosacral MRI taken in December 2004 revealed left central disc protrusion effacing the ventral thecal sac at L4-5. Subsequent treatment records through February 2005 reveal that the Veteran was diagnosed with low back pain secondary to disc protrusion; however, no opinion was given as to the cause of origin of the diagnosed disorder. Private treatment records from Dr. D.G., dated from February through April of 2006, show that the Veteran continued to be followed for low back pain. X-rays taken in February 2006 confirmed again the presence of a protruding disc in the lumbar spine. Again, no opinion was given as to the cause of the injury. During an April 2008 VA examination, the Veteran continued to allege a history of back problems dating back to 1979. Subjectively, the Veteran reported pain, stiffness, decreased thoracolumbar motion, and spasms with moderate and intermittent flare-ups; however, denied any history of urinary or bowel dysfunction. In his claims file review, the examiner noted an in-service and post-service history that is essentially consistent with the history discussed above. As noted previously, the Veteran continued to report that he worked full-time as a factory machinist for the past 20 years. A physical examination of the spine revealed painful motion, guarding, and tenderness on the left side of the Veteran's spine. Observation of the Veteran's posture indicated scoliosis. Demonstrated gait was antalgic. Thoracolumbar motion was diminished and accompanied by pain. Based upon the noted history and findings, the examiner diagnosed lumbar disc disease and opined that it is more likely related to the Veteran's post-service injuries (namely, the Veteran's bicycle accident in 1998). As rationale, the examiner notes that the Veteran's in-service back complaint was an isolated occurrence requiring treatment on only one occasion, whereas the Veteran's history indicates chronic back problems. The examiner also noted that there are findings of congenital spinal stenosis in the record, but concluded that an opinion as to whether such stenosis was aggravated during service not be made without resort to mere speculation. Upon consideration of the foregoing evidence, the Board finds that the Veteran is not entitled to service connection for a low back disability. Although the service treatment records do indicate that the Veteran sustained, and was treated for, a back injury during service, the evidence does not show that the Veteran's current back disorder is related in any way to his in-service injuries or to any other injury sustained during service. As noted above, the Veteran's separation examination did not reveal any abnormalities of the spine, and moreover, did not document any subjective complaints of any ongoing back symptoms. Hence, the service treatment records suggest that the Veteran's in-service back problems resolved prior to his separation from service. Consistent with the foregoing, the post-service treatment records do not indicate complaints or treatment related to the back until the Veteran's 1998 bicycle accident in which, by the Veteran's own report, his back "snapped." The only opinion concerning the cause of the Veteran's claimed back disability and issued by a medical professional is the negative opinion expressed in the April 2008 VA examination. As discussed, the examiner diagnosed lumbar disc disease and opined that it is more likely related to the Veteran's post-service injuries. The VA examiner also noted congenital stenosis on MRI results. As noted, congenital defects or malformations are not considered diseases or injuries for VA compensation purposes, although service connection may be granted if such a defect is subject to, or aggravated by, a superimposed disease or injury during service which results in additional disability. However, the VA examiner considered this possibility but explained that an opinion as to whether such stenosis was aggravated during service not be made without resort to mere speculation. Overall, the findings and conclusions expressed by the examiner are supported by an adequate rationale that is based upon a review of the claims file and accurate understanding of the medical history which comports with the Board's own review of the evidence. The VA examiner's opinion is rebutted in the record only by the Veteran's lay assertions that he has experienced continuous back problems since 1979. However, the Board finds that the Veteran's assertions are inconsistent with the other evidence of record. In that regard, the Veteran's assertions are contradicted by the absence of any subjective back complaints in service, the fact that the Veteran mentioned only a 4 year history of back problems during the course of treatment in 2002, and the lack of any objective back findings in the Veteran's separation examination. Again the Board is mindful that it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence; nonetheless, such considerations are still relevant factors in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, the fact that the Veteran reported only a 4 year history of back complaints in 2002, which is consistent with the 1998 injury, when considered in conjunction with the absence of subjective complaints or objective findings during the Veteran's separation examination, also weigh against the credibility of the Veteran's assertions concerning the continuity of back problems. As such, the Board concludes that the Veteran's assertions concerning ongoing back problems since 1979 are not credible and the Board assigns far greater probative weight to the VA examiner's April 2008 opinion. Overall, the preponderance of the evidence is against the Veteran's claim of service connection for a low back disorder. Accordingly, this claim must be denied. In reaching this determination, the Board again acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is inapplicable in relation to the Veteran's back claim because the preponderance of the evidence is against the claim. See Gilbert, 1 Vet. App. at 55; 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a right foot disability is denied. Entitlement to service connection for residuals of cuts to the middle and index fingers of the right hand is granted. Entitlement to service connection for a low back disability is denied. REMAND In relation to the Veteran's claims for service connection for hearing loss and tinnitus, the Veteran alleged in his August 2007 claim that he has experienced hearing loss and tinnitus since service as a cook for the 32nd Field Artillery. He specifically alleged acoustic trauma from firing artillery during training exercises, stating that his mess hall truck was located within 30 feet of firing guns. He stated that he did not wear hearing protection. In his November 2008 Notice of Disagreement, the Veteran alleged further that he was qualified as a marksman with M-16s and that he was assigned during service to 1-32 Field Artillery Unit in Fort Stewart, Georgia, where he was deployed for two and a half years. The service treatment records include a depiction of raw audiometric data dated November 1976 and expressed in a line graph. This data is not translated and expressed in the Veteran's November 1976 enlistment examination report or any other service treatment record. Although the subsequent service treatment records indicate that the Veteran did receive multiple audiometric examinations over the course of his service, in the absence of the translated data from the November 1976 enlistment audiogram, the Board is unable to ascertain from the evidence whether the Veteran experienced any pure tone shifts during his active duty service. The absence of evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a claim for service connection for hearing loss. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, service connection for hearing loss may be granted where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Mindful of the same, the Board notes that a determination of the question of whether the Veteran experienced audiometric pure tone changes during service is essential in determining whether the Veteran's current hearing loss resulted from his in-service acoustic trauma. The Veteran was afforded a VA examination of his hearing loss and tinnitus in April 2008. Based upon the Veteran's history and the audiometric findings from the examination, the examiner diagnosed bilateral sensorineural hearing loss and tinnitus. The examiner opined that the Veteran's hearing loss and tinnitus were less likely as not caused by or a result of in-service acoustic trauma from rocket launchers, grenades, M-16 gunfire, and/or cannon fire. Notably, the examiner did not provide an interpretation of the November 1976 audiometric data contained in the service treatment records, nor did she provide an opinion as to whether the Veteran may have experienced an auditory shift during service, and if so, whether such shifting may have been an early manifestation of his current hearing loss. Further, in her rationale, the examiner failed to acknowledge or discuss the Veteran's lay contentions that he has experienced hearing loss and tinnitus since his active duty service. Finally, the Board notes that, although the examiner limits the scope of her opinion to specific forms of acoustic trauma (such as rocket launchers, grenades, M-16 fire, and cannon fire), she does not express whether the Veteran's hearing loss and tinnitus are related to any other injury or illness sustained by the Veteran during his active duty service. For these reasons, the April 2008 examination is incomplete. Accordingly, the Veteran should be arranged to undergo a new VA examination of his claimed hearing loss and tinnitus. In conjunction with the examination, the examiner should be asked to review the claims file and to provide an interpretation of the November 1976 audiometric data contained in the service treatment records. The examiner should also be asked to provide an opinion as to whether the Veteran has current hearing loss that is related to any injuries or illnesses sustained during service, to include acoustic trauma and/or any audiometric shifting shown in the service treatment records. 38 C.F.R. § 3.159(c)(4). Prior to arranging the above examination, in order to insure that the most complete and up-to-date evidence has been associated with the claims file, the Veteran should also be asked to identify any private or VA treatment providers who have rendered treatment for his hearing loss or tinnitus since December 2005. VA must then also make efforts to obtain any treatment records that are identified by the Veteran. 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. A letter should be sent to the Veteran explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A, the need for additional evidence regarding his claims of entitlement to service connection for hearing loss and tinnitus. This letter must also inform the Veteran about the information and evidence that is necessary to substantiate his claims and provide notification of both the type of evidence that VA will seek to obtain and the type of evidence that is expected to be furnished by the Veteran. The letter must also notify the Veteran that VA is undertaking efforts to arrange a VA examination of his claimed hearing loss and tinnitus. The Veteran should be advised that it remains his responsibility to report for the scheduled VA examination and to cooperate with the development of his claim; failure to report without good cause may result in denial of his claim. The Veteran should also be provided a VA 21-4142 release and be asked to identify the name(s) and current address(es) for any private and/or VA treatment providers who have provided treatment for his hearing loss and tinnitus since December 2005. 2. Make efforts to obtain the records of any treatment identified by the Veteran. Any records obtained as a result of such efforts should be associated with the claims file. If such efforts yield negative results, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 3. Schedule the Veteran for an audiological examination to determine the etiology of his hearing loss and tinnitus. The Veteran's VA claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination. In reviewing the claims file, the examiner should interpret the November 1976 audiometric data contained in the Veteran's service treatment records and state the corresponding pure tones, expressed in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz. The examiner should perform all necessary tests and provide an opinion as to whether the Veteran's hearing loss and/or tinnitus is/are at least as likely as not (a 50 percent or better probability) related to the Veteran's claimed acoustic trauma or other injury or illness sustained during his active duty service. In providing the requested opinion, the examiner should consider and discuss whether the Veteran experienced any auditory shifting during his active duty service, and if so, whether such shifting was an early manifestation of the Veteran's current hearing loss. The examiner should provide a complete medical rationale for all conclusions reached, to include consideration of the effect of any post-service noise exposure. 4. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to the Veteran by the pertinent VA medical facility. 5. After completion of the above development, the issues of the Veteran's entitlement to service connection for hearing loss and tinnitus should be readjudicated. If the determination remains adverse to the Veteran, he and his representative should be furnished with a supplemental SOC and be given an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs