Citation Nr: 1513775 Decision Date: 03/31/15 Archive Date: 04/03/15 DOCKET NO. 13-10 290 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for right leg neuropathy. 3. Entitlement to service connection for left leg neuropathy. 4. Entitlement to service connection for a cervical spine condition. 5. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for diabetes mellitus, and, if so, whether service connection is warranted. 6. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hearing loss, and, if so, whether service connection is warranted. 7. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a low back disability, and, if so, whether service connection is warranted. 8. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include depression and posttraumatic stress disorder (PTSD), and, if so, whether service connection is warranted. 9. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus, and, if so, whether service connection is warranted. 10. Entitlement to an initial rating in excess of 10 percent for a service-connected left knee disability. 11. Entitlement to a rating in excess of 10 percent for a service-connected right knee disability. REPRESENTATION Appellant represented by: Timothy M. White, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Sonia, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1976 to September 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran appeared at a Travel Board hearing with the undersigned in November 2013. A transcript is of record. Consideration of the Veteran's appeal has included review of all documents within the Virtual VA paperless claims processing system and the Veterans Benefits Management System. The issues of entitlement to service connection for a low back disability and a psychiatric disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. During the November 2013 hearing, prior to the promulgation of a decision in the appeal, the Veteran expressed his desire to withdraw his appeal to the Board with regard to entitlement to service connection for hypertension, right and left leg neuropathy, and a cervical spine condition; and whether new and material evidence has been received to reopen a claim of entitlement to service connection for diabetes mellitus. The Veteran's desire to withdraw these issues is documented in the written hearing transcript of record. 2. By a June 2004 rating decision, the RO denied service connection for PTSD, depression, hearing loss, and tinnitus. The Veteran did not appeal that decision or submit new and material evidence within one year. 3. Evidence received since the June 2004 rating decision contains new evidence. Such evidence is not redundant and raises a reasonable possibility of substantiating the claims for service connection for tinnitus and depression. To the contrary, while the evidence is new as it relates to the claim for service connection for hearing loss, the evidence is redundant and does not raise a reasonable possibility of substantiating the claim. 4. By a June 2005 rating decision, the RO denied service connection for a low back disability. The Veteran did not appeal that decision or submit new and material evidence within one year. 5. Evidence received since the June 2005 rating decision contains new treatment for low back pain, and the Veteran has asserted that his low back disability is related to his service-connected knee disabilities; the evidence is therefore not redundant and raises a reasonable possibility of substantiating the claim. 6. Affording the Veteran the benefit of the doubt, tinnitus was incurred during active service and symptoms have been continuous since separation. 7. The Veteran's bilateral knee disabilities have been manifested by painful motion that has not been limited to flexion of 30 degrees or less or limitation of extension of 15 degrees or more. Objective tests have not shown recurrent subluxation or lateral instability of either knee. Dislocated semilunar cartilage, with frequent episodes of "locking," pain, and effusion into the joint; ankylosis; impairment of the tibia or fibula; and genu recurvatum have not been shown in either knee. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran have been met with regard to the issues of entitlement to service connection for hypertension, right and left leg neuropathy, and a cervical spine condition, and whether new and material evidence has been received to reopen a claim of entitlement to service connection for diabetes mellitus. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2014). 2. The June 2004 and June 2005 rating decisions are final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2014). 3. New and material evidence has not been received since the June 2004 rating decision to reopen the Veteran's claim for hearing loss. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2014). 4. New and material evidence has been received since the June 2004 rating decision to reopen the Veteran's claim for tinnitus. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2014). 5. New and material evidence has been received since the June 2004 rating decision to reopen the Veteran's claim for an acquired psychiatric disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2014). 6. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2014). 7. New and material evidence has been received since the June 2005 rating decision to reopen the Veteran's claim for a low back disability. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2014). 8. The criteria for entitlement to an initial rating in excess of 10 percent for a left knee disability have not been met. 38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1- 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5261 (2014). 9. The criteria for entitlement to a rating in excess of 10 percent for a right knee disability have not been met. 38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1- 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5010-5260 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawn Claims The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2014). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2014). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. At the November 2013 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran requested to withdraw the appeal with regard to entitlement to service connection for hypertension, right leg neuropathy, left leg neuropathy, and a cervical spine condition. He also requested to withdraw the issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for diabetes mellitus. Hence, there remain no allegations of errors of fact or law for appellate consideration with regard to these issues. Accordingly, the Board does not have jurisdiction to review the appeal as to these issues, and they must be dismissed. New and Material Evidence Claims Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that 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. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed, unless it is inherently false or untrue. Duran v. Brown, 7 Vet. App. 216, 220 (1994), Justus v. Principi, 3 Vet. App. 510, 513 (1991). Here, the Veteran's claims for entitlement to service connection for hearing loss, tinnitus, PTSD and depression were denied in June 2004. With regard to hearing loss, the claim was denied because the evidence did not show that the Veteran had a hearing loss disability for VA compensation purposes. See 38 C.F.R. § 3.385. Although the Veteran was provided a new VA examination to assess his hearing acuity in March 2013, the audiograms once again showed that the Veteran did not meet the requirements for hearing loss under 38 C.F.R. § 3.385. Therefore, the evidence is redundant and does not raise a reasonable possibility of substantiating the claim for service connection for hearing loss. Conversely, the Veteran's claim for service connection for tinnitus was denied because there was no diagnosis of tinnitus and no evidence of tinnitus during service. However, at the aforementioned March 2013 VA examination, the Veteran was diagnosed with tinnitus. Such evidence is not redundant and raises a reasonable possibility of substantiating the claim for service connection for tinnitus. Next, the June 2004 rating decision also denied service connection for depression because the evidence did not show treatment for depression during service or a link between current symptoms and an in-service occurrence. VA treatment records from December 2004 and January 2005 show the Veteran reported depression since he left the military in 1980. Such evidence is not redundant and raises a reasonable possibility of substantiating the claim for service connection for depression. With regard to the claim for service connection for a low back disability, the claim was denied in a June 2005 rating decision because there was no evidence of a link between current treatment for a low back condition with sciatica and active duty service. Although the claims file reflects new VA treatment for intermittent low back pain, such evidence does not relate to whether the Veteran's back symptoms are related to active service. However, at his November 2013 Board hearing, the Veteran testified that his low back symptoms were related to his service-connected knee disabilities. This evidence is new as such a theory has not been considered in previous adjudications of the claim, and, as noted, the Veteran's statements in this regard are presumed credible. See Justus, 3 Vet. App. at 513. Further, such evidence is material because it is indicative of possible nexus with his service-connected disabilities. In sum, the evidence is new and material and the claims for entitlement to service connection for tinnitus, PTSD and depression, and a low back disability must be reopened. However, the evidence is not new and material with regard to the claim for service connection for a hearing loss disability; it is therefore not reopened. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. The back and psychiatric disorder claims are the subjects of the REMAND below. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303(a)(2014). "To establish a right to compensation for a present disability, a Veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service'-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Furthermore, service connection can be established through application of statutory presumptions, including for chronic diseases (such as organic diseases of the nervous system) when manifested to a compensable degree within a year of separation from service. 38 U.S.C.A. §§ 1101, 1137; 38 C.F.R. §§ 3.307, 3.309. Under 38 C.F.R. § 3.303(b), if a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. When the fact of chronicity in service (or during the presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative route to service connection only for the specific chronic diseases listed in of 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, the Veteran reported that he served as a missile technician during active duty, which involved loading items onto various aircrafts that produced loud engine noise. He also stated that he would have to crawl under aircraft for inspection purposes, and he would not always be able to retrieve hearing protective devices if they fell out. As noted above, the Veteran was afforded a VA hearing examination in March 2013. The examiner described the Veteran's condition as delayed onset tinnitus, yet, in providing the date and circumstances of onset, he also stated that the Veteran first noticed tinnitus during service "with no specific onset identified." At his hearing, the Veteran testified that he did not describe his tinnitus as delayed, and again affirmed that he had ringing in his ears since service. He explained that he did not know exactly what the condition was until the late 1990's, approximately twenty years after separation from service, but the symptoms were present since service. The March 2013 examiner also provided a negative nexus opinion regarding the Veteran's tinnitus, stating that a diagnosis of noise-induced tinnitus required a diagnosis of noise-induced hearing loss or an association between tinnitus onset and some noise-related event. Yet, the Veteran had reported noise exposure via his work in aviation. Therefore, the opinion does not seem to adequately address what is considered a "noise-related event," given the Veteran's description of his work among loud airplanes. The Board acknowledges there is a lack of contemporaneous medical evidence showing a tinnitus disability until many years after service and has considered such as a factor in the analysis of this service connection claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). However, the Board finds the Veteran's lay statements are credible with regard to his assertion that he has had tinnitus symptoms since service. The only inconsistency with regard to his assertion appeared in the March 2013 examination report that described the Veteran's tinnitus as "delayed onset tinnitus." Yet, the examination report is internally contradictory in that the examiner also described the Veteran's symptoms as starting in service. The Veteran also clarified in his testimony that he had tinnitus symptoms since service but he did not know precisely what the disability was until many years after service. Indeed, the Veteran is competent to describe tinnitus, which is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). Resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran's tinnitus was incurred in service and has been continuous since separation from service discharge. Therefore, service connection is warranted. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 3.303(b), (d); Gilbert, 1 Vet. App. at 49. Increased Ratings Disability evaluations are determined by the application of the schedule of ratings which is based on average impairment of earning capacity. See U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Evaluation of a service-connected disability requires a review of the Veteran's entire medical history regarding that disability. 38 C.F.R. §§ 4.1, 4.2 (2014). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2014). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The Veteran's right knee chondromalacia with degenerative arthritis has been assigned a 10 percent rating under Diagnostic Code 5010-5260. The Veteran's left knee degenerative joint disease associated with the right knee disability has been assigned an initial rating of 10 percent under Diagnostic Code 5261. In terms of identifying the relevant appeal period, the Veteran filed his increased rating claim for the right knee and the original service connection claim for the left knee in April 2011. Ratings for disabilities of the knee are generally based on limitation of motion, instability/recurrent subluxation, or meniscus impairment. That is, VA is attempting to quantify the symptoms and limitation caused by a variety of knee impairments, regardless of how they are diagnosed. To the extent that the Veteran's right knee disability is degenerative in nature and eventually worsens (meaning that it causes greater functional limitation), he is free to again seek a higher rating. Diagnostic Codes 5260 and 5261 rate knee disabilities based on limitation of flexion or extension, respectively. The following ratings are available under Diagnostic Codes 5260and 5261: * A 10 percent rating is assigned for o Flexion limited to 45 degrees, or o Extension limited to 10 degrees. * A 20 percent rating is assigned for o Flexion limited to 30 degrees, or o Extension limited to 15 degrees. * A 30 percent rating is assigned for o Flexion limited to 15 degrees, or o Extension limited to 20 degrees. * A 40 percent rating is assigned for o Extension limited to 30 degrees. * A 50 percent rating is assigned for o Extension limited to 45 degrees. Normal range of knee motion is extension to 0 degrees and flexion to 140 degrees. 38 C.F.R. § 4.71a, Plate II (2014). VA treatment records from December 2004 show the Veteran's complaint of bilateral knee pain. Full range of motion was found in both knees. Moreover, the Veteran was afforded a VA knee and lower leg examination in September 2012. He demonstrated flexion of both the right and left knees to 130 degrees and 0 degrees of extension. There was no additional limitation of motion upon repetitive use of either knee. However, the examiner noted pain on movement and less movement than normal. Therefore, the evidence does not show that either knee warrants a higher rating under either Diagnostic Code 5261 or 5260. Neither knee condition has been manifested by limitation of flexion of 30 degrees or less or limitation of extension of 15 degrees or more. See 38 C.F.R. § 4.71a. Next, Diagnostic Code 5257 evaluates recurrent subluxation or lateral instability of a knee. The Board notes that the assignment of a separate rating under Diagnostic Code 5257 does not warrant impermissible pyramiding under 38 C.F.R. § 4.14. The VA General Counsel has issued separate precedential opinions holding that a Veteran also may be assigned separate ratings for arthritis with limitation of motion under Diagnostic Code 5260 or 5261 and for instability under Diagnostic Code 5257 or 5259. VAOPGCPREC 23-97 (July 1, 1997); VAOPGCPREC 9-98; see also Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Under Diagnostic Code 5257, recurrent subluxation or lateral instability of a knee is rated 10 percent disabling for a slight impairment. A 20 percent rating is warranted for a moderate impairment, and 30 percent rating is warranted for a severe impairment. Again, Diagnostic Code 5257 is not predicated on loss of range of motion. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). The words "slight," "moderate," and "severe" are not defined in the rating schedule. Use of terminology by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. December 2004 VA treatment records show the Veteran complained of instability in both knees. However, upon examination, there was no ligament instability; McMurray's test was negative. At the September 2012 VA knee and leg examination, joint stability tests yielded normal results. Muscle strength testing was also normal. The examiner did not find evidence or history of recurrent patellar subluxation or dislocation. The Veteran testified at the November 2013 Board hearing that he was given a cane approximately six months prior to the hearing. He also stated that his knees "give way." However, his VA records do not show the cane was provided to him due to his knees. The records from January 2013 show that he was provided a cane in connection with his complaints of left foot pain, with inability to walk correctly and wear shoes, due to pain in the little toe and a bruised foot, with diagnosis of cellulitis. The Board acknowledges that the Veteran is competent to describe instability of the joint. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, VA treatment records and the VA examination reports show there is no objective indications of joint instability. Medical professionals consistently did not identify joint instability associated with either the Veteran's right or left knee conditions. In short, the Board finds the normal objective testing more probative than the Veteran's claims of instability and subluxation for either the right or the left knee. As such, the preponderance of the evidence is against the assignment of a separate compensable rating for instability of either the right or the left knee. Next, under Diagnostic Code 5258, when semilunar cartilage is dislocated with frequent episodes of locking, pain and effusion into the joint a 20 percent rating is assigned. 38 C.F.R. § 4.71a. When semilunar cartilage has been removed, but remains symptomatic, a 10 percent rating is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5259. As noted in the September 2012 VA examination, the Veteran did not have current symptoms or a history of dislocation. Moreover, the Veteran did not have any meniscal conditions or surgical procedures for a meniscal condition. Therefore, higher ratings under Diagnostic Codes 5258 or 5259 are not warranted for either the right or left knee service-connected disabilities. Furthermore, Diagnostic Code 5256 evaluates ankylosis of the knee. However, neither the Veteran nor the evidences suggests that he experiences ankylosis in his knees. For example, the September 2012 VA examination report does not reflect any finding of ankylosis of either knee. Similarly, Diagnostic Code 5262 contemplates tibia and fibula impairment. However, the evidence of record contains no indication of impairment of the tibia and fibula with loose motion requiring a brace. The September 2012 VA knee examiner specifically indicated that the Veteran did not currently or ever have "shin splints," stress fractures, chronic exertional compartment syndrome, or any other tibial and or fibular impairment. As such, Diagnostic Codes 5256 and 5262 are not applicable. Additionally, the Veteran is already in receipt of a 10 percent rating, and Diagnostic Code 5253, which considers genu recurvatum, provides a maximum 10 percent rating. Nonetheless, the evidence does not reflect such a condition. In making the above determinations, the Board has considered whether the Veteran is entitled to an increased rating due to functional impairment under the provisions of 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca, 8 Vet. App. at 206-07. In this regard, the Board recognizes that the Veteran has reported chronic bilateral knee pain. He also testified that he has difficulty with prolonged standing or walking due to his knee disabilities. For example, he stated he has difficulty taking his dogs for walks. He also reported bilateral knee swelling, worse in colder weather conditions. However, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011) (emphasis added). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. In this case, the Veteran's pain has not been shown to functionally limit his range of motion to such a degree as would warrant a higher rating, and in September 2012, the examiner did not find any additional limitation of motion upon repetitive-use. Indeed, the current rating of 10 percent for each of the knees is based on the Veteran's report of painful motion, as his flexion and extension has not been shown to be limited to a compensable degree. In short, the Board has considered the Veteran's report of painful motion of the knees but finds that a rating in excess of 10 percent is not warranted based on functional loss for either knee. In sum, the Board finds that the preponderance of the evidence is against the Veteran's claim for an increased rating for service-connected right and left knee disabilities, and there is no basis for a staged rating of the Veteran's disabilities. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.159, 4.1-4.16, 38 C.F.R. § 4.71a, Diagnostic Codes 5256 to 5263; Gilbert, 1 Vet. App. at 49. The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) has been raised under Rice v. Shinseki, 22 Vet. App. 447 (2009). Although the Veteran experiences bilateral knee pain, his conditions alone have not been shown to render him unemployable. At the September 2012 examination, the examiner only found that the Veteran's work would be limited in terms of his ability to drive a truck and with regard to jobs requiring squatting, climbing or walking distances. In short, while the Veteran's knee conditions have been shown to limit his activities, there is no indication that he is unable to maintain substantially gainful employment solely as a result of his service-connected right or left knee disabilities. Finally, the Board has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected knee disabilities are inadequate. A comparison between the level of severity and symptomatology of the Veteran's disabilities with the established criteria shows that the rating criteria reasonably describe his disability levels and relevant symptomatology. Specifically, the rating criteria contemplate the Veteran's painful and limited motion. These symptoms, as well as his reports of knee stiffness and swelling, were further considered in accordance with the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59 (2010), and the holding in DeLuca, 8 Vet. App. at 202. In short, the rating criteria reasonably describe the Veteran's disability levels and symptomatology. The Veteran has not expressly raised the matter of entitlement to an extraschedular rating. His contentions have been limited to those discussed above, i.e., that his disabilities are more severe than is reflected by the assigned ratings. As was explained in the merits decision above in denying higher ratings, the rating criteria are adequate. Accordingly, the Board finds that the rating schedule is adequate, even in regard to the collective and combined effect of all of the Veteran's service connected disabilities, and that referral for extraschedular consideration is not warranted under the circumstances of this case. Johnson v. McDonald, 2013-7104, 2014 WL 3562218 (Fed. Cir. Aug. 6, 2014). Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014); Dingess/Harman v. Nicholson, 19 Vet. App. 473 (2006). With regard to the Veteran's claim for entitlement to service connection for tinnitus, as the Board's decision to reopen and grant service connection for tinnitus is completely favorable, no further action is required to comply with the VCAA and implementing regulations. Regarding the Veteran's remaining claims, the duty to notify was satisfied by May and June 2011 letters to the Veteran. The letters specifically informed the Veteran of the evidence necessary to substantiate his claims with regard to new and material evidence. Kent v. Nicholson, 20 Vet. App. 1 (2006). Regarding the duty to assist, the Board is satisfied VA has made reasonable efforts to obtain relevant records and evidence. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The evidence of record includes service treatment records, VA treatment records, private treatment records, hearing testimony, and several VA examinations. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). However, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate, and need not affirmatively establish the adequacy of the examination report or the competence of the examiner. Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-91 (Fed. Cir. 2009). Nonetheless, the Board finds the examination was adequate with regard to the Veteran's knee conditions because the examiner reviewed the Veteran's relevant medical history, recorded pertinent examination findings, and provided a sufficient analysis to support the conclusions rendered. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). As noted, the Veteran's claim for tinnitus has been granted; further discussion of the March 2013 VA examination for hearing loss is not warranted. Accordingly, VA's duty to provide a VA examination is satisfied. Additionally, the Veteran testified at a hearing before the Board in November 2013. A VLJ who conducts a hearing must fully explain the issues and suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the hearing, the Veteran was assisted by a representative, and both the representative and the VLJ asked relevant questions concerning the Veteran's symptoms and the resulting impairment, as well as the effect of his disability on his daily life. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2). Based on the foregoing, no further notice or assistance to the Veteran is required for fair adjudication of the Veteran's claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to service connection for hypertension, right and left leg neuropathy, and a cervical spine condition, as well as whether new and material evidence has been received to reopen a claim of entitlement to service connection for diabetes mellitus, is dismissed. New and material evidence has not been received to reopen a claim of entitlement to service connection for hearing loss; the appeal to this extent is denied. New and material evidence has been received to reopen a claim of entitlement to service connection for a low back disability; the appeal to this extent is granted. New and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder; the appeal to this extent is granted. New and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus; the appeal to this extent is granted. Entitlement to service connection for tinnitus is granted, subject to the regulations governing the award of monetary benefits. (CONTINUED ON NEXT PAGE) Entitlement to an initial rating in excess of 10 percent for a service-connected left knee disability is denied. Entitlement to a rating in excess of 10 percent for a service-connected right knee disability is denied. REMAND First, the Veteran has argued that his low back disability is related to his service-connected right and left knee disabilities. At the November 2013 Board hearing, he testified that because his knees tend to give way, he has put more pressure on his back. A medical opinion is necessary to determine whether the Veteran's low back disability was caused or aggravated by his service-connected knee disabilities. Next, the Veteran has argued that the August 2003 private psychiatric report is sufficient to establish service connection for an acquired psychiatric disorder to include depression. Although the report states that the Veteran had adjustment disorder with mixed anxiety and depressed mood "because of his experiences in the marines," there is no further rationale for the opinion offered. To the contrary, the Veteran's VA treatment records, such as notes from December 2004, state the Veteran is depressed because of financial hardships and pain related to his knees (which are service-connected) and his back (which is currently not service-connected). In addition, the Veteran testified that he witnessed several traumatic events when he was "younger," to include witnessing a girl being hit by a car and two suicides. He also described witnessing a suicide during boot camp. Therefore, clarification is needed as the etiology of any psychiatric disorders prior to further adjudication of the Veteran's claim. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's VA medical records for treatment from April 2013 to the present from Tulsa, Muskogee, Birmingham, and Oklahoma City. 2. Then, after obtaining any available VA records, obtain an opinion as to whether it is at least as likely as not that the Veteran's low back disability was caused or aggravated by his service-connected knee disabilities. With regard to aggravation, the Board notes that the term "aggravated" in the above context refers to a permanent worsening of the pre-existing or underlying condition, as contrasted to temporary or intermittent flare-ups of symptoms which resolve with return to the previous baseline level of disability. The claims file and a copy of this remand should be provided to the VA examiner for review. A detailed rationale should be given for all opinions and conclusions expressed. If an opinion cannot be rendered without resorting to speculation, the VA examiner should explain why it would be speculative to respond. 3. Then, after obtaining any available VA records, schedule the Veteran for a VA examination to determine the precise nature and etiology of any psychiatric disorders, to include depression. Again, the relevant medical records should be made available to the examiner for review in conjunction with the examination, and the examination report should reflect that such review was accomplished. All indicated tests and studies should be accomplished and the findings then reported in detail. (a) The examiner must review all pertinent evidence of record and provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's psychiatric disorder began during service or is otherwise linked to service, to include consideration of the Veteran's report of witnessing a suicide during boot camp. (b) The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's psychiatric disorder was caused or aggravated due to the pain from his service-connected knee disorders (as opposed to his nonservice-connected medical conditions). With regard to aggravation, the Board notes that the term "aggravated" in the above context refers to a permanent worsening of the pre-existing or underlying condition, as contrasted to temporary or intermittent flare-ups of symptoms which resolve with return to the previous baseline level of disability. A rationale should be given for all opinions and conclusions expressed and should not be solely based on the absence of treatment records during or after service. If an opinion cannot be rendered without resorting to speculation, the VA examiner should explain why it would be speculative to respond. 4. Thereafter, readjudicate the Veteran's claim. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate time period within which to respond thereto. Then return the case to the Board, 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 2014). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs