Citation Nr: 1542102 Decision Date: 09/29/15 Archive Date: 10/05/15 DOCKET NO. 11-33 845 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a headache disorder. 2. Entitlement to service connection for a right shoulder labral tear. 3. Entitlement to service connection for a left ankle sprain/torn ligament. 4. Entitlement to service connection for bilateral hearing loss. 5. Entitlement to service connection for tinnitus. 6. Entitlement to service connection for a lumbar spine disorder. 7. Entitlement to service connection for an upper back rib dislocation, to include as secondary to lumbar spine degenerative joint disease with disc herniation. 8. Entitlement to service connection for a bilateral knee disorder, to include as secondary to lumbar spine degenerative joint disease with disc herniation. 9. Entitlement to service connection for a left elbow disorder. 10. Entitlement to service connection for a bilateral hand disorder. REPRESENTATION Veteran represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran and his friend, D.J. ATTORNEY FOR THE BOARD Sarah Plotnick, Associate Counsel INTRODUCTION The Veteran served on active duty from June 2004 to December 2004 and from December 2005 to November 2006, with additional service in the U.S. Marine Corps Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2010 and July 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In May 2015, the Veteran and his friend, D.J., testified before the undersigned Veterans Law Judge at a video-conference hearing. A transcript of that hearing has been associated with the record. Subsequent to the hearing, the Veteran submitted additional evidence in July 2015 with a waiver of agency of original (AOJ) consideration. 38 C.F.R. § 20.1304(c) (2015). Therefore, the Board may properly consider such newly received evidence. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. The Board's decision addressing the matters of entitlement to service connection for headaches, a right shoulder disorder, a left ankle disorder, bilateral hearing loss, tinnitus, and a back disorder are set forth below. The remaining matters are addressed in the REMAND portion of the decision following the order and are REMANDED to the AOJ. FINDINGS OF FACT 1. In May 2015, prior to the promulgation of a decision on such issues, the Board received notification from the Veteran that he wished to withdrawn from appeal his claims of entitlement to service connection for a headache disorder, right shoulder labral tear, and left ankle sprain/torn ligament. 2. At no time during, or prior to, the pendency of the claim has the Veteran had a left ear hearing loss disability for VA purposes. 3. Resolving doubt in the Veteran's favor, his currently diagnosed right ear hearing loss is related to in-service noise exposure. 4. Resolving doubt in the Veteran's favor, his currently diagnosed tinnitus first manifested during active duty service and persisted since that time, and is related to in-service noise exposure. 5. Resolving doubt in the Veteran's favor, his currently diagnosed lumbar spine degenerative joint disease with disc herniation is related to an in-service injury. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran as to the issue of entitlement to service connection for a headache disorder have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). 2. The criteria for withdrawal of an appeal by the Veteran as to the issue of entitlement to service connection for a right shoulder labral tear have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). 3. The criteria for withdrawal of an appeal by the Veteran as to the issue of entitlement to service connection for left ankle sprain/torn ligament have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). 4. The criteria for service connection for left ear hearing loss are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2015). 5. The criteria for service connection for right ear hearing loss have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2015). 6. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). 7. The criteria for service connection for lumbar spine degenerative joint disease with disc herniation have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. 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 (2015). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran has withdrawn his appeal with respect to the issues of entitlement to service connection for a headache disorder, right shoulder labral tear, and left ankle sprain/torn ligament in a May 2015 communication. Thus, no allegations of errors of fact or law remain for appellate consideration with respect to those particular claims. As such, the Board does not have jurisdiction to review the claims and the appeal of those claims must be dismissed. II. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not in the 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. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). These notice requirements apply to all elements of a claim, including the degree and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Proper VCAA notice must be provided prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). As the Board's decision to grant service connection for right ear hearing loss, tinnitus, and lumbar spine degenerative joint disease with disc herniation constitutes a complete grant of such benefits sought on appeal, no further action is required to comply with the VCAA and the implementing regulations with respect to such claims. With regard to the Veteran's claim for service connection for left ear hearing loss, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a letter dated in April 2010, sent prior to the initial unfavorable rating decision issued in December 2010, advised the Veteran of the evidence and information necessary to substantiate his claim for service connection, as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, such letter advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Relevant to the duty to assist, the Veteran's service treatment records, VA treatment records, and private treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. In this regard, while the Board is remanding other service connection claims for additional records, the Board finds that such records are not relevant to the Veteran's left ear hearing loss. The Veteran was afforded a VA examination in conjunction with his left ear hearing loss claim in October 2010. The Board finds that such VA examinations are adequate to decide the issue as they are predicated on a review of the record, which includes the Veteran's statements; a review of his medical records; and audiological examination. In this regard, the Board notes that such audiological testing fails to reveal a current diagnosis of left ear hearing loss as defined by VA regulations. Moreover, a private audiogram conducted in July 2015 submitted by the Veteran continues to show no current diagnosis of left ear hearing loss. Therefore, there is no need for a nexus opinion regarding such issue. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and/or opinion regarding the issue decided herein has been met. In May 2015, the Veteran was provided an opportunity to set forth his contentions during a hearing before the undersigned Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the May 2015 hearing, the undersigned Veterans Law Judge noted the issue on appeal. Information was solicited regarding noise exposure during service and the nature and severity of the Veteran's hearing loss, to include the claimed onset of such disability. Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. The undersigned indicated that the record would be held open for 60 days to provide an opportunity to submit additional treatment records showing a diagnosis of hearing loss. Subsequently, the Veteran submitted a July 2015 audiogram addressing the matter; however, such continued to show no diagnosis of left ear hearing loss. Under these circumstances, nothing gives rise to the possibility that evidence had been overlooked with regard to the Veteran's claim decided herein. As such, the Board finds that, consistent with Bryant, the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. III. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by 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 of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this regard, the Board notes that arthritis is deemed a chronic disease under 38 C.F.R. § 3.309(a). In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. Additionally, in Fountain v. McDonald, 27 Vet. App. 258 (2015), the Court determined that tinnitus is an "organic disease of the nervous system" subject to presumptive service connection where there is evidence of acoustic trauma and nerve damage. A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370, 374 (2002). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). With respect to tinnitus, the Court has specifically found that this is a disorder capable of lay observation. Charles, supra. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Court has held that service connection can be granted for a hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service. Hensley, supra, at 159. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Left Ear Hearing Loss The Veteran claims that he has left ear hearing loss as a result of noise exposure during service. The Veteran is competent to report his in-service noise exposure and such is consistent with the nature of his duties as a motor transport operator and his service in Iraq. See 38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Therefore, the Board acknowledges that the Veteran was exposed to noise during service. However, the Board finds that the Veteran is not entitled to service connection for left ear hearing loss as a current diagnosis of such disability for VA purposes has not been shown at any point during, or prior to, the pendency of the claim. Pertinent to a claim for service connection, such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet.App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. In this case, VA received the Veteran's claim for bilateral hearing loss in April 2010. He was afforded a VA audiological examination in October 2010. The Veteran's left ear pure tone thresholds, in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz were 10, 5, 5, 25, and 20, respectively. His left ear speech recognition score using the Maryland CNC word list was 96 percent. The examiner noted that the Veteran's hearing loss was not disabling per 38 C.F.R. § 3.385. The Veteran submitted a private audiological report dated in July 2015. Audiometric testing revealed that left ear pure tone thresholds, in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz were 15, 10, 15, 30, and 20, respectively. His left ear speech recognition score was 100 percent. The Board notes that there is no indication as to whether such speech recognition score was obtained using the Maryland CNC word list. However, the Board notes that the Veteran's speech recognition score was not less than 94 percent. As such, even if the Maryland CNC word list was used, such result would not reflect a current disability for VA compensation purposes. The Board notes that no audiological evidence of record indicates that the Veteran's left ear hearing exceeds 40 decibels or more for any of the frequencies of 500, 1000, 2000, 3000, and 4000; nor did it exceed 26 decibels for at least three of those frequencies at any time during the appeal period. In addition, speech recognition scores using the Maryland CNC word list was not less than 94 percent in the left ear. Therefore, the Veteran has not had a current disability in the left ear for VA compensation purposes during, or prior to, the pendency of the claim. 38 C.F.R. § 3.385; McClain, supra. The Board notes that the July 2015 private audiologist opined that the Veteran's bilateral hearing loss was caused by his military service. However, as noted, the Veteran does not have a current left ear hearing loss disability for VA compensation purposes. The Board has considered the Veteran's allegations that he suffers from hearing loss due to noise exposure in service. However, the Board must adhere to the guidelines of 38 C.F.R. § 3.385, which do not provide for a finding of a current disability for pure tone thresholds or speech recognition scores that fail to meet the required minimum pure tone thresholds and speech recognition scores listed in the regulation. The Veteran's left ear pure tone thresholds and speech recognition scores do not meet the required minimum criteria to qualify as a current disability under 38 C.F.R. § 3.385. Moreover, the Veteran, as a lay person, is not competent to offer a diagnosis of left ear hearing loss as he does not possess the requisite specialized knowledge. In this regard, such a diagnosis requires the administration and interpretation of audiological test results. Therefore, as such is a complex medical question, the Veteran is not competent to offer a diagnosis of left ear hearing loss. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, as the objective medical evidence is against the finding that the Veteran's left ear hearing loss rises to the level that allows for compensation under the governing law and regulation, the Board finds that he has not had a current diagnosis of left ear hearing loss for VA purposes at any point pertinent to his claim. As such, service connection for left ear hearing loss is not warranted. For the foregoing reasons, service connection is not warranted for left ear hearing loss. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for left ear hearing loss. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. Right Ear Hearing Loss The Veteran claims that he has right ear hearing loss as a result of noise exposure during service. As noted above, the Board acknowledges that the Veteran was exposed to noise during service. Considering the pertinent evidence in light of the governing legal authority, the Board finds that service connection for right ear hearing loss is warranted. The Veteran was afforded a VA audiological examination in October 2010. The Veteran's right ear pure tone thresholds, in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz were 10, 10, 5, 30, and 35, respectively. His right ear speech recognition score using the Maryland CNC word list was 100 percent. The examiner noted that the Veteran's hearing loss was not disabling per 38 C.F.R. § 3.385. As such, the examiner did not provide a nexus opinion. The Veteran submitted a private audiological report dated in July 2015. Audiometric testing revealed that right ear pure tone thresholds, in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz were 15, 10, 15, 40, and 40, respectively. His right ear speech recognition score was 96 percent. The audiologist opined that the Veteran's hearing loss was more likely than not related to an injury, disease, or event during his military service. Her rationale was that "continued exposure to excessive noise, especially such as the intense impulse noise such as gunfire and explosives reported, is well-documented in the literature to cause hearing loss and/or tinnitus. . . . [The Veteran] has a bilateral hearing loss that is consistent with the amount of unsafe unprotected noise exposure that he reported." As to the requirement of current disability, the Board notes that, while the October 2010 testing results revealed, and the VA examiner found, that the Veteran did not have right ear hearing loss for VA purposes, such hearing loss was revealed in the July 2015 private audiological evaluation. As this evidence supports a finding that the Veteran has right ear hearing loss to an extent recognized as a disability for VA purposes (pursuant to 38 C.F.R. § 3.385), the evidence is sufficient to establish current disability. Cf. McClain, supra (finding that the requirement that a claimant have a current disability before service connection may be awarded for that disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim's adjudication). The Board further notes that the only opinion of record as to the question of etiology of the Veteran's current right ear hearing loss supports a finding that there exists a medical nexus between that disability and service. This opinion is persuasive, rendered by a competent professional within her area of expertise, based on full consideration of the record, to include the Veteran's assertions, and supported by stated rationale. Therefore, the Board finds that the Veteran's right ear hearing loss is related to his in-service noise exposure, and service connection for such disability is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. Tinnitus The Veteran claims that he began experiencing tinnitus during service and that such symptoms have continued since that time. As noted above, the Board acknowledges that the Veteran was exposed to noise during service. The record also reflects a diagnosis of tinnitus. In this regard, an October 2010 VA examination report and a July 2015 private treatment record reflects a diagnosis of tinnitus. Moreover, tinnitus is a disorder that is readily observable by laypersons and does not require medical expertise to establish its existence. See Charles, supra. Therefore, the remaining inquiry is whether the Veteran's current tinnitus is related to his in-service noise exposure. In October 2010, the Veteran was afforded a VA examination to determine the nature and etiology of his tinnitus. At such time, the audiologist stated that she could not opine as to whether the Veteran's tinnitus was related to military noise exposure without resort to mere speculation. Her rationale was that the date of onset was in question as the Veteran reported intermittent tinnitus in 2005 and constant tinnitus in 2006, but he did not report tinnitus in during a hearing test in 2007. The Board notes that the Veteran denied that his tinnitus ever subsided. See January 2011 Notice of Disagreement. In a July 2015 report, the Veteran's private audiologist opined that his tinnitus was more likely than not related to an injury, disease, or event occurring during his military service. She stated that the Veteran reported that he first noticed tinnitus that prevented him from sleeping after he returned from deployment. She further noted that "continued exposure to excessive noise, especially such as the intense impulse noise such as gunfire and explosives reported, is well-documented in the literature to cause hearing loss and/or tinnitus." She added that tinnitus is frequently seen in patients with noise-induced hearing loss. The Board finds that the Veteran has competently, credibly, and consistently reported that his tinnitus began during his military service and has existed to the present time. As indicated previously, the Veteran is competent to testify to factual matters of which he has first-hand knowledge. Specifically, he is competent to report when his tinnitus began and the continuity of such symptomatology. See 38 C.F.R. § 3.159(a)(2); Washington, supra; Layno, supra. Moreover, such is supported by his consistent statements throughout the course of his appeal. The Court has stated that lay evidence may establish the presence of a condition during service, post-service continuity of symptomatology, and evidence of a nexus between the present disability and the post- service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307-09 (2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (finding that lay testimony could, in certain circumstances, constitute competent nexus evidence). Moreover, the July 2015 private audiologist determined that the Veteran's tinnitus was related to his in-service noise exposure. Therefore, in light of the July 2015 private audiologist's opinion, the Veteran's competent and credible report that his tinnitus began during his active service, as well as his continuity of such symptomatology since service, the Board finds that tinnitus is related to his in-service noise exposure. Therefore, service connection for such disability is warranted. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. Lumbar Spine Disorder The Veteran contends that his current lumbar spine disorder was caused by an injury sustained during service in Iraq in 2006. Specifically, the Veteran claims that he injured his back while deadlifting in the gym during active duty service. The claims file contains various treatment records regarding complaints of back pain. During a February 2007 post-deployment health reassessment, the Veteran reported that he had back pain that he believed was related to his deployment. A December 2008 treatment record from Dr. K.P. indicates that the Veteran was treated for herniated lumbar discs. Dr. K.P. stated that the Veteran should be released from lifting greater than 50 pounds. A January 2009 periodic health assessment indicates that the Veteran had back pain. January 2009 treatment records show that the Veteran had low back pain and left leg pain that started in 2006 in Iraq; his symptoms resolved, but he then injured his back again in the gym in August 2008. A January 2010 periodic health assessment indicates that the Veteran had a lifting injury in 2006 while on active duty in Iraq. The Veteran was treated with Motrin and was not able to work for one week. His current level of pain was two to three out of 10. A January 2010 treatment note reflects that the Veteran's low back injury sustained in 2006 in Iraq resolved in a few months. The Veteran re-injured his back in September 2008 and was evaluated by a private physician. X-rays and MRI reports showed three compressed discs and a herniated nucleus pulpous in the lumbar spine. The Veteran had epidural steroid injections and physical therapy, which helped, but he then re-injured his spine in October 2009 at a drill combat fitness test. He went to the emergency room after his October 2009 injury, but no x-rays were taken. The treating physician indicated that the Veteran's chronic low back pain had its onset while on active duty in Iraq in 2006. A February 2010 service medical record indicates that the Veteran complained of back problems. In September 2010, the Veteran was afforded a VA spine examination. The Veteran reported that he initially injured his back while lifting weights in Iraq in the spring of 2006. He reported that his back did not feel "normal" for two months following the injury. He then injured his back again in October 2007 while squatting, and again in October 2009 doing a combat fitness test. The examiner diagnosed the Veteran with degenerative joint disease of the lumbar spine with a history of herniated discs. The examiner did not provide an opinion as to the etiology of the Veteran's lumbar spine disorder. June 2015 private treatment records by Dr. W.B. note that the Veteran's initial back injury was in 2006 when he was deadlifting while in Iraq. He has had pain since that time, and tweaked it again in 2007. Dr. W.B. further stated that the Veteran's disc degeneration is probably genetic and hereditary, but his disc herniation probably happened at the time of his initial injury and he has had flare ups since that time. He noted that the Veteran's disc herniation is related to his in-service deadlifting injury because he probably tore the disc at that point. July 2015 private treatment records by Dr. B.H. note that the Veteran's complaints of back pain began while he was doing a heavy deadlift in Iraq. Dr. B.H. opined that "the treatment [the Veteran] is receiving is solely the result of his injuries sustained in the accident of 2006 and could be biomechanically related to his rib subluxations and left knee instability." In light of the June 2015 and July 2015 private opinions, the Veteran's competent and credible report that lumbar spine disorder began during his active service, as well as his continuity of such symptomatology since service, the Board resolves all doubt in his favor and finds that service connection for lumbar spine degenerative joint disease with disc herniation is warranted. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER The appeal with respect to the issue of entitlement to service connection for a headache disorder is dismissed. The appeal with respect to the issue of entitlement to service connection for a right shoulder labral tear is dismissed. The appeal with respect to the issue of entitlement to service connection for a left ankle sprain/torn ligament is dismissed. Service connection for left ear hearing loss is denied. Service connection for right ear hearing loss is granted. Service connection for tinnitus is granted. Service connection for lumbar spine degenerative joint disease with disc herniation is granted. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Upper Back Rib Dislocation The Veteran contends that he has an upper back rib dislocation disability due to his military service. On his December 2011 VA Form 9, he stated that such disability was the result of an incident during a Marine Corps martial arts program. He further stated that it happened during March 2006 pre-deployment and he has continued to "have problems with the rib popping out." During his May 2015 Board hearing, the Veteran claimed that he had a problem with his rib subluxing due to military service. Specifically, he stated that he believed such was caused by sleeping on cots during service. The Veteran reported that he has been treated by a chiropractor for his claimed rib disorder. However, no such records have been associated with the claims file. Accordingly, the Veteran should be given the opportunity to identify any private healthcare provider who has treated him for his claimed upper back rib dislocation disorder and, thereafter, such records should be obtained for consideration in his appeal. The Board also notes that the record raises the question as to whether the Veteran's claimed rib disorder was caused by his lumbar spine disorder. In this regard, Dr. B.H. opined that the Veteran's lumbar spine disorder could be biomechanically related to his rib subluxations. The Veteran has not yet been afforded a VA examination with regard to his claim for upper back rib dislocation. Accordingly, in light of the Veteran's statements that his rib dislocation disorder began during service and has continued since service, the Board finds that he should be afforded a VA examination to determine the etiology of any current rib dislocation disorder. See 38 C.F.R. § 3.159(c)(4). Bilateral Knee Disorder The Veteran contends that he has a current bilateral knee disorder as the result of his military duties, to include driving and maintaining vehicles. At his May 2015 Board hearing, the Veteran reported that he was treated by a physical therapist at a VA clinic in Fort Collins. He also reported that he "had more than one person tell [him] now that they thing [his knee disorder] is a direct result of [his] body trying to move differently to compensate for the way [his back] feels." May 2015 Hearing Transcript at 13. The Board notes that July 2015 treatment notes from Dr. B.H. indicate that the Veteran's lumbar spine disorder could be biomechanically related to his left knee instability. The Veteran has not yet been afforded a VA examination with regard to his claim for a bilateral knee disorder. In light of the Veteran's statements that his knee pain began during service, and that he was told by physicians that his knee disorder was caused by his back disorder, the Board finds that he should be afforded a VA examination to determine the etiology of any current bilateral knee disorder. See McLendon, supra. Left Elbow Disorder The Veteran contends that he has a left elbow disorder as the result of a fall during Marine boot camp or combat training. He stated that he fell on a rock and his fingers became numb and remained numb for four months until he hit his elbow again. He reported that since such incident, his left elbow has been extremely sensitive to contact and he experiences numbness in his fingers. The Board notes that a January 2010 Report of Medical History indicates that the Veteran reported pain in his elbows during strenuous activity. In July 2011, the Veteran was afforded a VA examination to determine the nature and etiology of his claimed left elbow disorder. The Veteran reported that he injured his elbow in boot camp when he fell on a rock. He stated that his left hand digits three, four, and five became numb and tingling, which lasted for approximately six months. X-rays revealed minimal degenerative changes around the olecranon. The examiner diagnosed the Veteran with left medial epicondylitis with impingement. The examiner opined that the Veteran's left elbow condition was less likely as not caused by or a result of military service. The rationale was that the Veteran's September 2007 military examination report indicated that there were no deficits in the upper extremities, strength was equal, and there were no complaints of pain. The examiner also stated that the medical examination in May 2010 did not identify any concerns with elbow pain or numbness or tingling of the fingers. The Board finds that the July 2011 VA examination is inadequate because the examiner did not fully consider the evidence of record. In this regard, as noted above, the Veteran reported on a January 2010 Report of Medical History, that he experienced elbow pain. However, such report was not addressed by the July 2011 examiner. Furthermore, the examiner noted that the Veteran did not report elbow pain at his May 2010 examination. However, the Veteran had a medical examination in September 2010, not May 2010. It is unclear whether the examiner was referring to the September 2010 examination in his rationale. As such, the Board finds that an addendum opinion is necessary to determine the etiology of the Veteran's left elbow disorder. Bilateral Hand Disorder The Veteran contends that he has weakness in his hands as a result of military service. The Board notes that a January 2010 Report of Medical History states, "[p]ain in wrist varies, gripping." He also reported that he had tingling in his right arm and occasional numbness. On his December 2011 VA Form 9, the Veteran reported that he has had problems with his hands since military service. It is unclear based on the record whether the Veteran has a current bilateral hand disorder. Under these circumstances, in light of the Veteran's allegations of hand problems since military service, the Board finds that a VA examination and opinion is needed to resolve the claim for service connection for a bilateral hand disorder. See McLendon, supra. All Claims The record indicates that the Veteran served in the Marine Corps Reserves from June 2004 to June 2010; however, it is unclear when the Veteran served on active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). On remand, the AOJ should clarify the exact dates the Veteran served on ACDUTRA and INACDUTRA from June 2004 to June 2010. Furthermore, the Board notes that although some of the Veteran's service treatment records from his service in the Marine Reserves are contained in the claims file, it is not clear whether his complete service treatment records have been obtained. On remand, the AOJ should attempt to obtain the Veteran's complete service treatment records from his service in the Marine Reserves. If the Veteran's periods of ACDUTRA and INACDUTRA are unverifiable, or his treatment records are unavailable, such a fact should be documented, in writing, in the record. The record also indicates that there may be outstanding private treatment records. The appellant reported at his May 2015 hearing that he was treated by a private chiropractor. However, such records have not been associated with the claims file. On remand, the AOJ should request that the Veteran provide appropriate authorization to obtain such records. Finally, the record raises the issue as to whether the Veteran's claimed upper back rib dislocation disorder and bilateral knee disorder were caused by his lumbar spine disorder, which is now service-connected. As such, on remand, the Veteran should be provided with proper VCAA notice regarding secondary service connection. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be provided with proper VCAA notice regarding the evidence and information necessary to substantiate his claims of entitlement to service connection for an upper back rib dislocation disorder and bilateral knee disorder as secondary to his service-connected lumbar spine degenerative joint disease with disc herniation. 2. Contact the National Personnel Records Center, the U.S. Marine Corps, or any other appropriate source to obtain all service treatment records during the Veteran's service in the Marine Reserves. Verify the Veteran's periods of service in the Marine Reserves, to include a list of the dates of active duty, ACDUTRA, and INACDUTRA, for the time period from June 2004 to June 2010. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. Request that the Veteran provide appropriate authorization so that any private treatment records, to include those from his private chiropractor, may be obtained. Make at least two (2) attempts to obtain such records. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 4. After all records have been associated with the claims file, schedule the Veteran for a VA examination to determine the nature and etiology of his claimed upper back rib dislocation disorder. The record, including a complete copy of this remand, must be made available for review. Based on an interview with the Veteran, a review of the record, and a physical examination, the examiner should offer an opinion as to the following: (a) Identify all upper back rib dislocation disorders. (b) For each disability found to be present, offer an opinion as to whether such is at least as least as likely as not (i.e., a 50 percent probability or greater) caused or aggravated by the Veteran's active duty service or any verified period of ACDUTRA. The examiner should specifically address the Veteran's claim that such disability was caused either by an incident in March 2006 during a Marine Corps martial arts program, or as a result of sleeping on cots during active duty service. (c) The examiner should also opine whether any diagnosed upper back rib dislocation disorder caused OR aggravated by the Veteran's lumbar spine degenerative joint disease with disc herniation. In this regard, the examiner should specifically address the July 2015 opinion by Dr. B.H. indicating that the Veteran's lumbar spine disorder could be biomechanically related to his rib subluxations. A complete rationale should be provided for all opinions given. 5. After all records have been associated with the claims file, schedule the Veteran for a VA examination to determine the nature and etiology of his claimed bilateral knee disorder. The record, including a complete copy of this remand, must be made available for review. Based on an interview with the Veteran, a review of the record, and a physical examination, the examiner should offer an opinion as to the following: (a) Identify all bilateral knee disorders. (b) For each disability found to be present, offer an opinion as to whether such is at least as least as likely as not (i.e., a 50 percent probability or greater) caused or aggravated by the Veteran's active duty service or any verified period of ACDUTRA. The examiner should specifically address the Veteran's claim that such disability was caused by driving and maintaining vehicles. (c) The examiner should also address whether any diagnosed bilateral knee disorder caused OR aggravated by his lumbar spine degenerative joint disease with disc herniation. In this regard, the examiner should specifically address the July 2015 opinion by Dr. B.H. indicating that the Veteran's lumbar spine disorder could be biomechanically related to his left knee instability. A complete rationale should be provided for all opinions given. 6. After all records have been associated with the claims file, return the claims file to the VA examiner who conducted the July 2011 left elbow examination. The record and a copy of this Remand must be made available to the examiner. The examiner should note in the examination report that the record and the Remand have been reviewed. If the July 2011 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The examiner should review the entire record, to include the lay statements from the Veteran regarding the onset and continuity of symptomatology. The examiner should provide an opinion as to whether the Veteran's left elbow disorder is at least as least as likely as not (i.e., a 50 percent probability or greater) caused or aggravated by the Veteran's active duty service or any verified period of ACDUTRA. The examiner should specifically address the Veteran's claim that his elbow disorder was caused by a fall during Marine boot camp or combat training, as well as the January 2010 Report of Medical History, indicating that the Veteran reported pain in his elbows during strenuous activity. The examiner should also clarify whether an examination report dated in May 2010 was reviewed. A complete rationale should be provided for all opinions given. 7. After all records have been associated with the claims file, schedule the Veteran for a VA examination to determine the nature and etiology of his claimed bilateral hand disorder. The record, including a complete copy of this remand, must be made available for review. Based on an interview with the Veteran, a review of the record, and a physical examination, the examiner should offer an opinion as to the following: (a) Identify all bilateral hand disorders. (b) For each disability found to be present, offer an opinion as to whether such is at least as least as likely as not (i.e., a 50 percent probability or greater) caused or aggravated by the Veteran's active duty service or any verified period of ACDUTRA. A complete rationale should be provided for all opinions given. In rendering his or her opinion, the examiner should consider the Veteran's statements regarding the onset of his claimed bilateral hand disorder. 8. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the U.S. 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). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs