Citation Nr: 1339846 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 07-14 511 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an increased rating for posttraumatic stress disorder (PTSD) in excess of 30 percent disabling from August 19, 2005 and 70 percent disabling from April 7, 2009. 2. Entitlement to an initial compensable rating for hearing loss. 3. Entitlement to an initial compensable rating for sinusitis. 4. Entitlement to an increased rating in excess of 30 percent for arteriosclerotic heart disease, status post myocardial infarction and status post angioplasty of left anterior descending artery. 5. Entitlement to a compensable rating for scars, residuals of a shrapnel wounds of the neck, left shoulder, back and legs. 6. Entitlement to service connection for a respiratory disorder. 7. Whether new and material evidence has been received to reopen a claim for service connection for lumbar strain. 8. Entitlement to service connection for lumbar strain. 9. Entitlement to service connection for a perforated eardrum. 10. Entitlement to service connection for peripheral neuropathy. 11. Entitlement to service connection for diabetes mellitus. 12. Entitlement to service connection for senile dementia. REPRESENTATION Appellant represented by: J. Michael Woods, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active service from March 1963 to February 1970 and from December 1990 to January 1992. This matter comes before the Board of Veterans Appeals (Board) on appeal from June 2006, March 2008 and August 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The issues of entitlement to an increased rating for posttraumatic stress disorder (PTSD); a higher initial rating for sinusitis; service connection for a respiratory disorder; entitlement to a increased rating for arteriosclerotic heart disease; entitlement to an increased rating for scar, residuals of a shrapnel wound of the neck, left shoulder, back and legs; service connection for a lumbar spine disorder; service connection for peripheral neuropathy; service connection for diabetes mellitus; and service connection for senile dementia are addressed in the REMAND portion of the decision below and REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. FINDINGS OF FACT 1. Prior to April 10, 2009, the Veteran had Level III hearing acuity in the right ear and Level II hearing acuity in the left ear. 2. From April 10, 2009 to August 7, 2012, the Veteran had Level IV hearing acuity in both ears. 3. From August 8, 2012, the Veteran had Level III hearing acuity in both ears. 4. An unappealed June 1992 rating decision denied service connection for lumbar strain. 5. The evidence submitted since the prior final denial of service connection for lumbar strain is neither cumulative nor redundant and raises a reasonable probability of substantiating the claim. 6. There is no competent evidence of a current disability manifested by a perforated eardrum. CONCLUSIONS OF LAW 1. Prior to April 10, 2009, the criteria for a compensable rating for hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2012). 2. From April 10, 2009 to August 7, 2012, the criteria for a 10 percent rating for hearing loss have been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2012). 3. From August 8, 2012, the criteria for a compensable rating for hearing loss have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2012). 4. The June 1992 rating decision which denied service connection for lumbar strain is final. 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 5. New and material evidence has been received to reopen the claim for service connection for lumbar strain. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2012). 6. A perforated eardrum was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist As provided for by VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). 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 or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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 in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ, in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that VA must examine the basis for a denial of a previously disallowed claim and provide the appellant with notice of the evidence of service connection found lacking in the previous denial. Kent at 9-10. In this case, a December 2005 letter informed the Veteran of the evidence required to substantiate the claim for service connection for hearing loss and informed him of the Veteran's and VA's respective duties for obtaining evidence. The RO provided the Veteran with additional notice in February 2007 regarding effective dates and disability ratings. The RO did not provide the Veteran with additional notice regarding the claim for a higher initial rating for hearing loss. In Dingess, the Court held that, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose the notice is intended to serve has been fulfilled. See Dingess, 19 Vet. App. at 490-91. The RO issued an SOC in April 2007 that advised the Veteran of the pertinent laws and regulations and the reasons for the decision. A February 2007 letter satisfied the requirements of Kent. This letter advised the Veteran of the basis of the previous denial of service connection for a lumbar strain. A June 2009 notice letter informed the Veteran of the evidence required to substantiate the claim for a perforated eardrum. The February 2007 and June 2009 letters also informed the Veteran of the evidence required to substantiate a service connection claim and of the Veteran's and VA's respective duties for obtaining evidence. These letters included notice of how disability ratings and effective dates are determined. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record indicates that the RO obtained all information relevant to the claims being decided. The available service treatment records have been obtained, as well as post-service VA and private treatment records. The Veteran was afforded VA audiological examinations in September 2007, April 2009 and August 2012. When VA undertakes to provide a VA examination or obtain a VA examination or opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran has been afforded adequate examinations for his hearing loss disability. The claims file and treatment records were reviewed, the Veteran's history was taken, and complete examinations were conducted. The Veteran was not afforded VA examinations to address the claims for service connection for a perforated eardrum and the claim to reopen service connection for lumbar strain. The Board finds that a VA examination is not necessary to decide the claim for service connection for a perforated eardrum, as the evidence does not establish a current diagnosis of a perforated eardrum. VA is not required to obtain an examination for a claim to reopen a final decision, unless new and material evidence is presented or secured. See 38 C.F.R. § 3.159(c)(4)(C)(iii). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished with respect to the claims being decided, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the available relevant records, and has provided adequate examinations to the Veteran. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Analysis of Claims Disability Ratings Disability evaluations (ratings) are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the policy of the VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating was filed until the final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. Initial Rating for Hearing Loss A March 2008 rating decision granted service connection for hearing loss and assigned a non-compensable (0 percent) rating. The Veteran seeks a higher initial rating. He alleges that a higher initial rating is warranted. In statements in support of his claim, he has reported that he really has to focus on instructions being given. The Rating Schedule provides a table (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, based on puretone thresholds and controlled speech discrimination (Maryland CNC) testing. Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear. 38 C.F.R. § 4.85. The "puretone threshold average" as used in Table VI is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz , divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85(d). Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Where there is an exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86 , the rating may be based solely on puretone threshold testing. An exceptional pattern of hearing impairment occurs when the puretone thresholds in each of the four frequencies 1000, 2000, 3000, and 4000 Hertz are 55 decibels or greater, or when the puretone threshold at 1000 Hertz is 30 decibels or less and the threshold at 2000 Hertz is 70 decibels or more. 38 C.F.R. § 4.86(a), (b). The Board finds that the criteria of 38 C.F.R. § 4.86 are not met in this case. The evidence shows puretone thresholds of 55 decibels or greater at 2000, 3000, and 4000 Hertz but does not show puretone thresholds of 55 decibels or greater at a frequency of 1000 Hertz. The evidence does not show puretone threshold at 1000 Hertz is 30 decibels or less and the threshold at 2000 Hertz is 70 decibels or more. Therefore, the rating criteria at 38 C.F.R. § 4.86 for exceptional hearing impairment do not apply in this case. The Veteran had a VA examination in September 2007. Audiological testing obtained the following puretone thresholds, in decibels: HERTZ 1000 2000 3000 4000 RIGHT 25 25 60 60 LEFT 25 25 55 55 Average puretone thresholds were 42.5 decibels for the right ear and 40 decibels for the left ear. Speech recognition scores were 80 percent for the right ear and 84 percent for the left ear. Using Table VI, a numeric designation of III is obtained for the right ear, and a numeric designation of II is obtained for the left ear. Table VII provides that a 0 percent evaluation is warranted for those numeric designations. Upon VA examination in April 2009, the following puretone thresholds, in decibels, were obtained: HERTZ 1000 2000 3000 4000 RIGHT 25 25 60 65 LEFT 25 25 60 65 The average puretone thresholds were 43.75 in both ears. The Veteran had speech recognition scores of 72 percent in both ears. Applying these values to Table VI, a numeric designation of IV is obtained for both ears. Table VII provides that a 10 percent rating is warranted when there is a numeric designation of IV for both ears. Upon VA examination in August 2012, the following puretone thresholds, in decibels, were obtained: HERTZ 1000 2000 3000 4000 RIGHT 25 25 60 65 LEFT 20 25 55 65 The average puretone thresholds were 44 for the right ear and 41 for the left ear. Speech discrimination scores were 80 percent for the right ear and 76 percent for the left ear. Applying these values to Table VI, a numeric designation of III is obtained for both ears. Table VII provides that a non-compensable rating is assignable for these numeric designations. In Martinak v. Nicholson, 21 Vet. App. 447 (2007) the Court held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak, 21 Vet. App. at 455. In this case, the April 2012 VA examiner noted that the functional impact of the Veteran's hearing loss was that he did not understand speech well and did not always hear his wife speaking to him. Based upon the foregoing, the Board finds that the criteria for a compensable rating were not met during the initial rating period prior to April 10, 2009. The Board finds that the criteria for a 10 percent rating, but no higher, were met from April 10, 2009 to August 7, 2012. 38 C.F.R. § 4.85, Diagnostic Code 6100 (2012). Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board finds that a non-compensable rating is warranted from August 8, 2012. As the preponderance of the evidence is against the claim for an initial compensable rating for bilateral hearing loss for the period prior to April 10, 2009 and after August 8, 2012, the claim must be denied as to those periods. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extraschedular Considerations In Martinak, 21 Vet. App. at 455, the Court held that, relevant to VA audiological examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. The Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. In this case, the August 2012 VA examination addressed functional effects of the Veteran's hearing loss. The Board notes that the Court's rationale in requiring an examiner to consider the functional effects of a veteran's hearing loss disability involves the potential application of 38 C.F.R. § 3.321(b) in considering whether referral for an extraschedular rating is warranted. Specifically, the Court noted that, unlike the rating schedule for hearing loss, 38 C.F.R. § 3.321(b) does not rely exclusively on objective test results to determine whether a referral for an extraschedular rating is warranted. VA's policy requiring VA audiologists to describe the effect of a hearing disability on a veteran's occupational functioning and daily activities facilitates such determinations by requiring VA audiologists to provide information in anticipation of its possible application. Martinak at 455. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Only if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, so is found inadequate, the RO or Board must determine whether the claimant'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"). Thun v. Peake, 22 Vet. App 111, 115-16 (2008). In this Veteran's case, the Board has considered the complaints of difficulties hearing speech. The schedular rating criteria specifically provides for ratings based on all levels of hearing loss, including exceptional hearing patterns which are not demonstrated in this case, and as measured by both audiological testing and speech recognition testing. Speech recognition testing is a schedular rating criterion that recognizes such an inability to understand certain words in conversation. Consequently, the Board finds that the schedular rating criteria in this case are adequate to rate the Veteran's bilateral hearing loss, and the Board is not required to remand this case to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See also Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Claim to Reopen Service Connection for Lumbar Strain Service connection for lumbar strain was previously denied in a June 1992 rating decision. The rating decision found that there was no diagnosis of a low back condition on discharge examination and that a VA examination in January 1992 was negative for a diagnosis of a low back condition. An August 1992 letter provided the Veteran with notice of the rating decision and his appellate rights. The Veteran did not submit a timely notice of disagreement. 38 U.S.C.A. § 7105. The Veteran also did not submit any information or evidence within one year of the August 1992 rating decision to render the decision non-final for VA purposes. See 38 C.F.R. § 3.156(b) (2012); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-252 (2010) (holding that when statements are received within one year of the rating decision, the Board's inquiry is not limited to whether the statements constitute notices of disagreement, but whether they include the submission of new and material evidence under 38 C.F.R. § 3.156(b).). As the Veteran did not submit a timely notice of disagreement or any additional evidence within one year of notice of the June 1992 rating decision, the June 1992 rating decision became final based upon the evidence of record. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103. The evidence of record at the time of the June 1992 rating decision included service treatment records and the report of the March 1992 VA examination. In August 2005, the Veteran sought to reopen the claim for service connection for a lumbar spine condition. Under 38 U.S.C.A. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. A claim that is the subject of a prior final denial may be reopened if new and material evidence is received with respect to that claim. Once a claim is reopened, the adjudicator must review it on a de novo basis, with consideration given to all of the evidence of record. 38 U.S.C.A. § 5108 (West 2002); Evans v. Brown, 9 Vet. App. 273 (1996). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative, nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2012). The evidence that is considered to determine whether new and material evidence has been received is the evidence received since the last final disallowance of the appellant's claim on any basis. Evans, 9 Vet. App. 273 (1996). This evidence is presumed credible for the purposes of reopening an appellant's claim, unless it is inherently false or untrue, or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). The Board has an obligation to make an independent determination of its jurisdiction regardless of findings or actions by the RO. Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83 F.3d 1380 (Fed. Cir. 1996). In Shade v. Shinseki, 24 Vet. App. 110 (2010) the Court stated that the phrase "raises a reasonable possibility of substantiating the claim" is not a third part of the new and material standard. The Court indicated the phrase must be viewed as "enabling" reopening rather than "precluding" it. The evidence received since the June 1992 rating decision includes VA and private treatment records, statements from the Veteran and the transcript of the Veteran's testimony at an RO hearing in March 2009. A private medical record dated in January 2011 noted a clinical history of lumbar spondylosis and back pain. A VA treatment record dated in April 2011 shows that the Veteran reported back pain. The record noted that a CT myelogram of the lumbar spine in January 2011 showed multilevel spondylosis with a component of spinal canal stenosis at L2-3 and L5-S1. At a hearing before a VA Decision Review Officer in March 2009, the Veteran testified that he sustained a back injury during service in Vietnam when he was thrown in the air by an RPG rocket. The Veteran testified that he was being treated by a chiropractor. In a statement submitted in May 2007, the Veteran noted that he was hit by two missiles explosions in July 1966 and was blown through the air. The Veteran indicated that he sustained another injury to his back when he was handling a mock casualty. The Board finds that new and material evidence has been received to reopen the claim of entitlement to service connection for lumbar spine disorder. The evidence received since the prior final denial is new, as it was not previously submitted to agency decisionmakers and is neither cumulative nor redundant of the evidence of record at the time of the prior denial of the claim. The evidence is also material, as it relates to the basis for the prior denial of service connection for lumbar strain. Treatment records received since the prior final denial reflect current diagnoses of a lumbar spine disability. The Veteran's testimony regarding his symptoms of back pain and his treatment since service relates to the issue of whether the Veteran has a current lumbar spine disability; his credibility is presumed for purposes of reopening. Accordingly, as new and material evidence has been received, the claim of entitlement to service connection for lumbar strain is reopened. Adjudication of the Veteran's claim does not end with the determination that new and material evidence has been received. This matter must now be addressed on a de novo basis. For the reasons detailed in the remand section, additional development is required for adjudication of the service connection claim. Service Connection Legal Criteria Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). A perforated eardrum is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). Satisfactory lay or other evidence that an injury or disease was incurred in combat will be accepted as sufficient proof of service incurrence if the evidence is consistent with the circumstances, conditions, or hardships of such service even though there is no official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2012). However, the provisions of 38 U.S.C.A. § 1154(b) do not obviate the requirement that a veteran must submit medical evidence of a causal relationship between his disability and service. Libertine v. Brown, 9 Vet. App. 521, 524 (1996). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). 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 must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection for Perforated Eardrum The Veteran asserts that he has a perforated eardrum is related to exposure to blasts in combat and diving training. In a March 2009 statement, the Veteran indicated that he has a perforated eardrum that was caused by blasts in combat situations. In a September 2009 statement in support of his claim, the Veteran indicated that he had a perforated eardrum when he was aboard the USS Decatur. The Veteran indicated that he completed a dive but could not clear his ears after the dive. He also indicated that he was classified as physically unfit for Navy Diving School because of a perforated ear drum. Service treatment records do not reflect any complaints, findings or diagnoses of a perforated eardrum. The Veteran is competent to report noise exposure in combat as well as experiencing problems with his ears after a dive. The Board finds the Veteran credible. Post-service treatment records are negative for complaints or findings of a perforated tympanic membrane. A private treatment record from Dr. Wadsworth, dated in November 2002, showed that examination of the right ear tympanic membrane was negative. A VA outpatient treatment record dated in April 2007 noted that the Veteran's tympanic membrane was okay. A report of a September 2007 VA examination noted intact tympanic membranes. The Board acknowledges the Veteran's assertions of a current eardrum disability; however, such a disability is not shown by the competent evidence of record. The Board notes that, although the Veteran is competent to report symptoms affecting his ears, he is not competent to diagnose a perforated eardrum, as this is a complex medical question. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds that service connection may not be granted for a perforated tympanic membrane, as the evidence does not show a current perforated membrane disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (holding that there can be no valid claim for service connection in the absence of a current disability). Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Prior to April 10, 2009, an initial compensable rating for hearing loss is denied. From April 10, 2009 to August 7, 2012, a 10 percent rating is granted for hearing loss, subject to regulations governing the payment of monetary benefits. From August 8, 2012, a compensable rating for hearing loss is denied. New and material evidence having been received, the claim of entitlement to service connection for lumbar strain is reopened. To that extent only, the claim is granted. Service connection for a perforated eardrum is denied. REMAND For the reasons discussed below, the Board finds that further development is warranted before the Board may consider the claims for an increased rating for PTSD; an increased rating for arteriosclerotic heart disease; an increased rating for sinusitis; service connection for a respiratory condition; service connection for lumbar strain; an increased rating for residual shrapnel wound scars; service connection for diabetes mellitus; service connection for peripheral neuropathy; and service connection for dementia. Increased ratings for PTSD and Arteriosclerotic Heart Disease After the Veteran's appeal was certified to the Board, the Veteran's representative submitted evidence in support of the claims of entitlement to an increased rating for PTSD and an increased rating for arteriosclerotic heart disease. The evidence includes an evaluation by a private psychologist and vocational expert, addressing the severity of the Veteran's PTSD and arteriosclerotic heart disease. The evidence was submitted without a waiver of initial consideration by the RO. The RO has not readjudicated the claims in light of the new medical evidence, nor has a Supplemental Statement of the Case been issued reflecting consideration of that evidence. 38 C.F.R. § 20.1304(c) (2012). Thus, the claims must be remanded for RO consideration of the newly submitted evidence. Initial rating for Sinusitis Upon VA examination in September 2007, the Veteran reported that his sinus infections were frequent and severe after returning from Desert Storm and required multiple courses of antibiotics. A VA examination in April 2009 noted chronic sinusitis with frequent flare-ups. The Veteran reported incapacitating episodes 12-14 times per year, which had increased from before, per the Veteran. The Veteran reported that he was on Claritin and antibiotics as needed. The examination report did not specifically indicate whether there are incapacitating episodes of sinusitis which require antibiotics. Upon VA examination in August 2012, the Veteran reported chronic sinus problems since his stay in Kuwait in 1991. The examination report did not provide findings regarding the number of episodes of sinusitis per year and whether such episodes are non-incapacitating or incapacitating. The VA examiner also did not indicate whether antibiotic treatment is required for sinusitis. The VA examinations afforded the Veteran in September 2007, April 2009 and August 2012 do not adequately address the rating criteria, as they do not include findings of the number of episodes of sinusitis and do not indicate whether such episodes are non-incapacitating or are incapacitating episodes of sinusitis requiring antibiotics. Although the records shows that the Veteran reported incapacitating episodes of sinusitis in April 2009, the examination did not indicate whether such reported incapacitating episodes require prolonged antibiotic treatment. The Board notes further that an incapacitating episode of sinusitis is defined as one that requires bed rest and treatment by a physician. See 38 C.F.R. § 4.97, Diagnostic Code 6514, Note (2012). Based on the foregoing, the Veteran should be afforded a new VA examination to ascertain the current severity of sinusitis. Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that VA must provide an examination that is adequate for rating purposes). Service Connection for a Respiratory Disorder The Veteran claims entitlement to service connection for a respiratory disorder, both on a direct and secondary basis. The Veteran asserts that he has a respiratory condition that is related to exposure to oil fires during his service in Operation Desert Storm. In a May 2007 statement, the Veteran asserted that a respiratory condition is related to his service-connected heart disease. A VA treatment record dated in April 2009 shows that the Veteran reported shortness of breath that was controlled with inhalers. The record did not indicate whether there is a diagnosis associated with the reported shortness of breath. VA has a duty to obtain a medical examination when the record contains competent evidence of a current disability or symptoms of a current disability; evidence establishing that an event, injury, or disease occurred in service; an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or a service-connected disability; and insufficient evidence to decide the case. 38 U.S.C.A. §5103A (West 2002); 38 C.F.R. §3.159(c)(4) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). There is no medical opinion of record regarding whether a current respiratory disability is related to exposure to oil fires in service or to the Veteran's service-connected heart disability. In addition, the RO has not provided the Veteran with notice of the evidence required to substantiate the claim for service connection on a secondary basis and not adjudicated the claim for service connection for a respiratory disorder on a secondary basis. The Board notes that, when determining service connection, all theories of entitlement, direct and secondary, must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). Service Connection for Lumbar Strain The Veteran asserts that a current lumbar spine disability is related to back injuries he sustained in both periods of active service. In a statement in support of his claim, the Veteran has indicated that he sustained a back in injury in 1966 when he was hit by two missile explosions and blown through the air. The Veteran stated that he later injured his back again while handling a mock casualty. The Veteran received combat citations for his service in Vietnam, including the Combat Action Ribbon and the Purple Heart Medal. The Veteran's statements regarding an injury in a missile explosion are consistent with the circumstances of his service. 38 U.S.C.A. § 1154(a). The Board finds the Veteran competent and credible with respect to his report of being blown in the air by a missile explosion. Service treatment records from the Veteran's second period of active duty reflect that the Veteran was seen with complaints of back pain in July 1985 after pulling a man out of a ditch. Physical examination showed pain in the right lumbar area and musculoskeletal spasm. Post-service VA treatment records reflect a current diagnosis of lumbar spondylosis. Given the Veteran's report of a back injury in his first period of service, as well as the documented complaints of back pain during his second period of active service, a VA examination is warranted to ascertain the nature and etiology of a current lumbar spine disorder. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Increased Rating for Scars The Veteran seeks a compensable evaluation for scars, residuals of shrapnel wound of the neck, left shoulder, back and legs. A report of a VA examination in December 2005 indicated that shell fragment wounds of the left posterior neck interfered with the range of motion. The report also noted that a scar of the left posterior deltoid resulted in discomfort with elevation of the upper extremities. The report did not provide findings regarding the severity of the impairment of the upper extremities. Upon VA examination in September 2007, the Veteran reported that scars of the left posterior neck, left posterior deltoid and left shoulder were causing discomfort. The VA examiner noted that there appeared to be degenerative joint disease in the left shoulder and cervical spine that contributed to scars in the area of the scars in the neck, deltoid area and shoulder. The VA examiner noted that there was limitation of motion but stated that it would require resort to mere speculation to comment on the contribution of the scar versus the degenerative disease but did not provide the reasons why an opinion would require speculation. See Jones v. Shinseki, 23 Vet. App. 382 (2010). In April 2009, a VA examiner noted that the Veteran had residuals of irritation, including pain, increased sensitivity and limited motion related to scars on the neck and left shoulder. The VA examiner also indicated that the Veteran had degenerative joint disease at multiple levels of the cervical spine as well as the shoulder. The VA examiner stated that it would require resort to speculation to determine the degree of limitation from scars versus degenerative joint disease. A report of a VA examination dated in August 2012 noted that the Veteran has degenerative joint disease in his neck that results in limitation of motion in all planes. The VA examiner did not specifically indicate whether degenerative joint disease is related to the service-connected residuals of shrapnel wounds. In this case, the VA examinations of record are not sufficient to decide the claim, as the VA examinations did not provide specific findings regarding the limitation of motion associated with the scars. Accordingly, the Board finds that a new VA examination is necessary. Barr, supra. Service Connection for Diabetes Mellitus A statement from a private physician, Dr. D.B., dated in October 2009, noted a diagnosis of diabetes mellitus. A private medical record dated in April 2009 reflects an impression of diabetes mellitus characterized by a mild degree of glucose intolerance. The Veteran may be presumed to have been exposed to Agent Orange during service based upon his service in Vietnam during the Vietnam era. If a Veteran was exposed to Agent Orange during service, certain listed diseases, including type II diabetes mellitus, are presumed to be service-connected. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.309(e). The Veteran has not been afforded a VA examination to ascertain whether he currently has type II diabetes mellitus. As the record contains evidence of a diagnosis of diabetes mellitus, the Board finds that a VA examination is necessary to decide the claim. 38 U.S.C.A. §5103A (West 2002); 38 C.F.R. §3.159(c)(4) (2012). Service Connection for Dementia The Veteran asserts that senile dementia is related to exposure to Agent Orange in Vietnam and exposure to toxic chemicals, including pyrethrum, during service in Vietnam. A treatment record from a private neurologist, dated in April 2009 noted Parkinson's-related dementia. Another record from that physician, dated in October 2009 reflects a diagnosis of senile dementia. In September 2009, a VA psychiatrist noted that there was a history of dementia diagnosis but stated that the Veteran did not appear to have this. The Veteran has not been afforded a VA examination to address the nature and etiology of dementia. Because the evidence of record is not sufficient to decide the claim, the Board finds that an examination is necessary to ascertain whether the Veteran has current dementia and to obtain an etiology opinion. 38 U.S.C.A. §5103A (West 2002); 38 C.F.R. §3.159(c)(4) (2012). Service Connection for Peripheral Neuropathy A decision on the claim for service connection for diabetes mellitus, type II, could affect the outcome of the Veteran's claim for service connection for peripheral neuropathy. As such, the claims are inextricably intertwined. Accordingly, the issue of service connection for diabetes mellitus must be resolved prior to resolution of his claim for service connection for peripheral neuropathy. Harris v. Derwinski, 1 Vet. App. 181 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). VA treatment records As the Veteran's claims are being remanded for new VA examinations, the Board finds that the RO should also request updated VA treatment records from July 2013 through the present. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should obtain and associate with the claims file or Virtual VA all outstanding pertinent treatment records from the VA Medical Center in Memphis, dated from July 2013 to the present. 2. Provide the Veteran with VCAA notice regarding the evidence required to substantiate a claim for service connection for a respiratory disability secondary to service-connected arteriosclerotic heart disease. 3. Schedule the Veteran for an appropriate VA examinations for: sinusitis; a respiratory disorder; lumbar spine disorder; residual shrapnel wound scars of the neck, left shoulder, back and legs; diabetes mellitus; and dementia. The claims folder must be provided to and reviewed by the examiner(s) in conjunction with the examination(s). The examination reports should indicate that the claims file was reviewed. A. The VA examiner should indicate the number of episodes of sinusitis per year. The VA examiner should indicate whether the episodes of sinusitis are incapacitating episodes requiring prolonged (lasting four to six weeks) antibiotic treatment or whether such episodes are non-incapacitating and characterized by headaches, pain, purulent discharge or crusting. Incapacitating episodes of sinusitis are defined by regulation as one requiring bed rest and treatment by a physician. B. The VA examiner should diagnose any respiratory disorder. The VA examiner should provide an opinion as to (a) whether it is at least as likely as not (50 percent or greater likelihood) that a current respiratory disorder is related to service, including exposure to oil well fires during service in Operation Desert Storm; (b) whether a current respiratory disorder is at least as likely as not proximately caused by service-connected arteriosclerotic heart disease, status post myocardial infarction; and (c) whether a current respiratory disorder is aggravated by (permanently worsened by) service-connected arteriosclerotic heart disease, status post myocardial infarction. The examiner should provide a detailed rationale for the opinions. If an examiner cannot provide the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. C. The VA examiner should diagnose any current lumbar spine disorder and should provide an opinion as to whether it is as least as likely as not (50 percent probability or greater) that any diagnosed lumbar spine disorder is related to the Veteran's periods of active service, including a reported injury in an RPG blast and the complaints of back pain that were documented during service in 1985. For the purposes of the opinion, the VA examiner should be advised that the Board finds the Veteran competent and credible with regard to his report of an injury in an RPG blast. Therefore, the examiner should assume the credibility of the Veteran's report of this incident. The examiner should provide a detailed rationale for the opinion. If an examiner cannot provide the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. D. The examiner should provide detailed findings regarding the scar, residuals of a shrapnel wound of the neck and left shoulder. The VA examiner should address the following: a) For each identified scar, the examiner should indicate whether the scar is deep (underlying soft tissue damage), superficial and/or nonlinear; and whether the scar is unstable (in that, for any reason, there is frequent loss of covering of skin over the scar), painful, or causes any limitation of function. b) If the examiner determines that the scar found on examination results in limitation of function, the VA examiner should set forth detailed findings regarding range of motion for the affected part. c) If any of the scars affects the function of a muscle group, the VA examiner should identify the affected muscle and should indicate whether such impairment is slight, moderate, moderately severe or severe. d) The VA examiner should state whether degenerative joint disease of the cervical spine, if found on examination, is at least as likely as not (50 percent or greater likelihood) a manifestation of the Veteran's service-connected shrapnel wounds of the neck. e) The VA examiner should state whether degenerative joint disease of the left shoulder, if found on examination, is at least as likely as not (50 percent or greater likelihood) a manifestation of the Veteran's service-connected shrapnel wounds of the left shoulder. E. The VA examiner should perform any tests necessary to determine whether the Veteran currently has type II diabetes mellitus and should state an opinion as to whether a current diagnosis of diabetes mellitus is appropriate. If an examiner cannot provide the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. F. The examiner should ascertain the nature and etiology of dementia. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. The examination report should indicate that the claims file was reviewed. The VA examiner should state whether dementia, if present is a manifestation of the Veteran's service-connected Parkinson's disease or a separately diagnosable disorder. If dementia is not a manifestation of Parkinson's disease, the VA examiner should provide an opinion as to whether it is at least as likely as not that current dementia is related to active service, including Agent Orange exposure during the Veteran's service in Vietnam. The examiner should provide a detailed rationale for the opinion. If an examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 10. Following completion of the foregoing, the AMC/RO must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, the AMC/RO should determine whether the VA examiners have responded to all questions posed. If not, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2012). 11. After the requested development has been completed, the AMC/RO should readjudicate the claims based on all the evidence of record. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs