Citation Nr: 1802324 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 17-04 516 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a low back condition, to include as secondary to a service-connected right ankle disability. 2. Entitlement to service connection for a left hip condition, to include as secondary to a service-connected right ankle disability. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for bilateral hearing loss. 5. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for tinnitus. 6. Entitlement to service connection for tinnitus. 7. Entitlement to a rating in excess of 10 percent for a right ankle disability. 8. Entitlement to an initial compensable rating for a left 5th finger (little finger) disability. REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD R. Kipper, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1964 to October 1966. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. An October 2014 rating decision granted entitlement to service connection for a left little finger disability and assigned a noncompensable rating and denied entitlement to service connection for a low back condition and a left hip condition. A February 2015 rating decision increased the rating for the Veteran's right ankle disability to 10 percent. An April 2015 rating decision denied entitlement to service connection for bilateral hearing loss and tinnitus. The Board notes that a claim of entitlement to service connection for bilateral hearing loss and tinnitus was previously denied in a March 2008 rating decision. The Board acknowledges that the RO reopened the Veteran's claim, and adjudicated it on the merits. Despite the determination reached by the RO, the Board must make its own determination as to whether new and material evidence has been received to reopen this claim. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The issues have been recharacterized accordingly. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues of entitlement to service connection for a low back condition, a left hip condition, and bilateral hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a March 2008 rating decision, the RO denied entitlement to service connection for bilateral hearing loss and tinnitus. No timely appeal was received by VA, nor was any new and material evidence submitted within the applicable appeal period. 2. Additional evidence received since the RO's March 2008 decision is new to the record and relates to an unestablished fact necessary to substantiate the merits of the claim of entitlement to service connection for bilateral hearing loss and tinnitus and raises a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral hearing loss and tinnitus. 3. The evidence is at least in relative equipoise regarding whether the Veteran's tinnitus is related to service. 4. The Veteran's right ankle disability is manifested by such symptoms as limitation of motion, pain, swelling, instability, and giving way, which most closely approximate marked limitation of ankle motion, without demonstration of functional impairment comparable to ankylosis. 5. The Veteran's left little finger disability is manifested by painful motion which results in functional loss, trigger-finger deformity, swan neck deformity, and objective evidence of degenerative arthritis of the proximal interphalangeal (PIP) joint, the distal interphalangeal (DIP) joint, and the metacarpal phalangeal (MCP) joint. It does not involve two or more minor joint groups. CONCLUSIONS OF LAW 1. The March 2008 rating decision is final as to the claim of entitlement to service connection for bilateral hearing loss and tinnitus. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.1103 (2017). 2. New and material evidence has been presented to reopen the claim of entitlement to service connection for bilateral hearing loss and tinnitus. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. Resolving all doubt in favor of the Veteran, the criteria for establishing service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 4. The criteria for a 20 percent rating, but no higher, are satisfied for the Veteran's right ankle disability. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.102, 3.321, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2017). 5. The criteria for an initial 10 percent disability rating, and no higher, for a left little finger disability, are met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. § 3.102, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5230 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In the present case, VA's duty to notify was satisfied by way of May 2013 and October 2014 letters to the Veteran. 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 treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. The Veteran has not identified any outstanding evidence, to include any other medical records, which could be obtained to substantiate his appeal. The Board acknowledges the Court's recent decision in Correia v. McDonald, 28 Vet. App. 158 (2016), in which it held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. Specifically, the Court stated that "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59." Id. at 169-170. In the present matter, the examinations of record do not fully conform to the holding in Correia. While this would ordinarily impose upon the Board a duty to remand the matter for an adequate VA examination, the Board draws attention to the fact that, by way of the decision below, the Veteran's right ankle disability is already afforded the highest available rating based upon range of motion. In order to be awarded a higher evaluation, the Veteran would have to show the presence of ankylosis. As such, any additional range of motion testing would be merely cumulative and redundant, as such findings could not be used to show how the Veteran is entitled to any higher evaluation for his right ankle disability based upon range of motion alone. Additionally, as discussed in detail below, the Veteran's left 5th finger disability cannot be granted a compensable rating based on range of motion. Under these circumstances, the Board finds that a remand to obtain an additional examination would serve no useful or meaningful purpose and would only result in unnecessarily imposing additional burdens on VA with no potential benefit flowing to the Veteran. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Thus, the Board will proceed to consider the Veteran's claim based on the evidence of record notwithstanding the requirements of Correia v. McDonald. In light of the foregoing, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that all necessary development has been accomplished. Therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. New and Material Evidence The Veteran's claim of entitlement to service connection for bilateral hearing loss and tinnitus was previously denied, and the Veteran seeks to reopen the claim. In general, RO rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). The credibility of the evidence is presumed for the purpose of reopening, 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 threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. With respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the service connection claim. In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim. The Veteran initially filed a claim of entitlement to service connection for bilateral hearing loss and tinnitus in April 2007. In a March 2008 rating decision, the RO denied the claim on the basis the evidence did not show that bilateral hearing loss and tinnitus were incurred in service. The Veteran was notified of the decision and his appellate rights by a letter dated later that month. The Veteran did not appeal that decision, nor did he submit any new and material evidence within a year of that rating decision. The March 2008 rating decision therefore became final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Relevant evidence of record at the time of the RO's March 2008 rating decision included the Veteran's service treatment records and a VA examination report. Based on this evidence, the RO concluded that the Veteran did not have bilateral hearing loss or tinnitus that was incurred in or caused by service and denied the Veteran's claim for service connection. In July 2014, the Veteran requested that his claim of entitlement to service connection for bilateral hearing loss and tinnitus be reopened. Relevant additional evidence received since the RO's March 2008 rating decision includes additional VA treatment records, a VA examination report, and lay statements of the Veteran and others indicating that the Veteran experienced ear symptoms during weapons training in service. This evidence was not previously on file at the time of the RO's March 2008 decision; thus, it is new. The evidence is also material because the additional lay statements suggest that the Veteran experienced relevant symptoms in service. Specifically, when the claim was previously denied by the RO, the determination was that the Veteran did not have bilateral hearing loss or tinnitus that was the result of service, in part, because there was no evidence of treatment in service. The newly received evidence shows that the Veteran experienced problems with his ears in service and after service, at least when the credibility of the evidence is presumed. See Justus, 3 Vet. App. at 512-13. Thus, the new evidence relates to an unestablished fact necessary to substantiate a claim of entitlement to service connection for bilateral hearing loss and tinnitus, and it raises a reasonable possibility of substantiating the claim, particularly when considering the low threshold for reopening a claim set forth in Shade. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, when viewed as a whole, the new evidence contributes to a more complete picture of the circumstances surrounding the origin of the Veteran's bilateral hearing loss and tinnitus. Accordingly, the claim of entitlement to service connection for bilateral hearing loss and tinnitus is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). III. Service Connection The Veteran contends that his tinnitus was incurred as a result of his exposure to loud noise from gunfire while serving as a military policeman. For the reasons that follow, the Board finds that the Veteran's tinnitus is related to service and concludes that service connection is warranted. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). In the present case, the March 2015 VA audiological examination establishes a current tinnitus diagnosis. Additionally, the Veteran is competent to report on symptoms of ringing in the ears. See Charles v. Principi, 16 Vet. App. 370 (2002). Thus, the Veteran has satisfied the first Shedden requirement of a current disability. Next, the evidence of record supports a finding that the Veteran was exposed to noise in service. The Veteran's service records indicate that he served as a military policeman. As this military occupational specialty (MOS) has been determined by the Department of Defense to involve a "moderate" likelihood of hazardous noise exposure, in-service noise exposure is conceded. See VA Fast Letter 10-35 (Sept. 2, 2010) (providing Duty MOS Noise Exposure Listing and stating that if the duty position is shown to have a "Highly Probable" of "Moderate" likelihood of exposure to hazardous noise, exposure to such noise will be conceded for purposes of establishing the in-service event). As a result, the second element of Shedden is satisfied. As such, the remaining question for consideration is whether the Veteran's tinnitus is related to in-service noise exposure. During a February 2008 VA examination, the Veteran reported severe, constant, subjective tinnitus, bilaterally for 40 years. The diagnosis was severe, constant, subjective tinnitus, bilaterally for 40 years. The examiner indicated that "there is no documentation of tinnitus in the Veteran's SMRs; therefore, it is not likely that the tinnitus had its origins in the service." In a December 2014 statement, the Veteran reported that he first experienced ringing in his ears while trying to qualify with a pistol during military police training. He indicated that he had trouble qualifying and so he shot the weapon over and over. He further indicated that he did not go to sick call at the time. In a December 2014 statement, the Veteran's friend submitted a statement indicating that he served with the Veteran and that the Veteran complained of pain and ringing in his ears after trying to qualify with a 45 caliber pistol during military police training. During the March 2015 VA examination, the Veteran reported tinnitus with an onset in the military after gunfire. The examiner indicated that it was not possible to determine if tinnitus is related to in-service noise exposure because "there is no documentation of tinnitus in the Veteran's SMRs." The Board finds that the VA audiological opinions do not persuasively show that the Veteran's claimed tinnitus is not etiologically related to in-service noise exposure. The February 2008 examiner based his opinion on the lack of service treatment records documenting tinnitus. The Veteran's service treatment records, including the August 1966 Report of Medical History, are silent for any complaints, treatment or diagnoses of tinnitus; however, while the examiner acknowledged that the Veteran reported the onset of constant tinnitus approximately forty years ago, it is not clear the extent to which the examiner considered these statements in regard to whether the Veteran's reports of the onset of symptoms in service and continuity of symptomatology since service were consistent with noise induced tinnitus. Similarly, the March 2015 VA examiner discounted the Veteran's lay statements in determining that an opinion could not be rendered due to a lack of diagnosis or treatment in the service treatment records. Tinnitus is a subjective symptom. As noted above, a lay person's observation of persistent ringing in the ears is competent. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). In the Veteran's initial contacts with VA he maintained that the onset of the ringing in his ears occurred in service; thereafter, he has continued to maintain that the onset of the current ringing in his ears occurred in service. Thus, the Veteran's reports of symptoms have been consistent. Also, the nexus question in this case is not the etiology of tinnitus that had its onset many years after noise exposure which would render the medical question complex due to the potential of many different intercurrent causes. The Court reiterated in Wise that "[b]y requiring only an 'approximate balance of positive and negative evidence' to prove any issue material to a claim for veterans benefits, 38 U.S.C. § 5107(b), the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits." Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990)). Resolving reasonable doubt in favor of the Veteran, the Board grants service connection for tinnitus on the basis of continuity of symptomatology. 38 C.F.R. §§ 3.307(a); 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). IV. Increased Ratings Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where entitlement to compensation already has 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). Here, the relevant evidentiary window begins one year before the Veteran filed his claim for an increased rating, and continues to the present time. The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). 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); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Section 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is being evaluated is predicated on range of motion measurements. See Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016). A. Right Ankle Disability The Veteran's right ankle disability is currently rated as 10 percent disabling under the criteria of 38 C.F.R. § 4.71a, Diagnostic Code 5003-5271. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Under Diagnostic Code 5271, a 10 percent disability rating is for assignment for moderate limitation of ankle motion and a 20 percent evaluation for marked limitation of ankle motion. A 20 percent disability rating is the highest possible schedular rating under Diagnostic Code 5271. Higher disability ratings of 30 and 40 percent are possible under Diagnostic Code 5270 with evidence of ankylosis. Words such as "moderate" and "marked" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Normal motion of the ankle is described as dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees. See 38 C.F.R. § 4.71, Plate II. Turning to the evidence of record, a June 2014 VA treatment record shows that the Veteran was seen in the emergency room after a fall in which his right ankle gave out. He complained of chronic, intermittent, achy, non-radiating, right ankle pain. He also reported chronic right ankle swelling. He was diagnosed with chronic right ankle pain. The Veteran was afforded a VA examination in November 2014. The Veteran reported right ankle pain and swelling. He also reported that climbing eight stairs increases the pain. The Veteran's wife reported intermittent redness, slight warmth, and tenderness to the anterior/medial right ankle. The Veteran did not report flare-ups. On range of motion testing, the Veteran had plantar flexion to 20 degrees and dorsiflexion to 20 degrees (normal). Pain was noted with dorsiflexion. There was no evidence of pain with weight bearing, but there was objective evidence of localized tenderness or pain on palpation. There was no additional loss of function or range of motion after three repetitions. The examiner indicated that swelling, instability of station, disturbance of locomotion, and interference with standing were all additional contributing factors of disability. Muscle strength testing was normal, and there was no evidence of ankylosis. The Veteran did not use any assistive devices. Degenerative arthritis was documented on x-rays. The Veteran underwent a private right ankle evaluation in July 2015. The Veteran reported pain and instability. He also reported wearing a brace. On examination, the Veteran had mild swelling over the medial aspect of the right ankle. He also had tenderness over the medial malleolus as well as over the deltoid ligament and over the anteromedial aspect of the ankle joint. He had stable ligamentous testing. He had 5 degrees of dorsiflexion and 25 degrees of plantar flexion. Muscle testing was normal. The diagnosis was right ankle posttraumatic arthritis. A May 2017 private treatment record shows five degrees of right ankle dorsiflexion and 25 degrees of plantar flexion. Affording the Veteran the benefit of the doubt, the Board finds that the overall disability picture for the Veteran's right ankle disability more closely approximates a 20 percent rating, especially when considering functional loss. 38 C.F.R. §§ 4.7, 4.40, 4.45. At worst, his left ankle dorsiflexion has been limited to 5 degrees, representing a loss of more than half of his dorsiflexion. Normal dorsiflexion is 20 degrees. 38 C.F.R. § 4.71, Plate II. At worst, his plantar flexion has been limited to 20 degrees, representing a significant loss of motion. Normal plantar flexion is 45 degrees. Id. Further, the Veteran has competently and credibly described significant functional limitations and pain. With regard to such complaints of pain, the Court has held that VA must consider additional functional loss on use due to pain on motion or due to flare-ups of the disability. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 205-206 (1995). Given that the Veteran appears to have moderate to marked limited motion of the ankle with pain, swelling, instability, and giving way, the Board finds that the overall disability picture more closely approximates a marked ankle disability and warrants a 20 percent rating during the entire rating period. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-207 (1995). The 20 percent rating is the highest disability rating possible under Diagnostic Code 5271. The Board has considered other potentially applicable Diagnostic Codes. The maximum evaluation available under Diagnostic Codes 5272 through 5274 is 20 percent. Therefore, they are not more favorable to the Veteran. The only other applicable diagnostic code that could provide for a disability rating in excess of 20 percent is Diagnostic Code 5271 for ankle ankylosis. The Board notes that ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Dorland's Illustrated Medical Dictionary 93 (30th ed. 2003). See also 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, NOTE (5) defining ankylosis as fixation of a joint in a particular position. Given the ranges of motion found by the various examiners, the Board finds that that the Veteran does not have ankylosis. Additionally, the November 2014 VA examiner specifically found no right ankle ankylosis. Additionally, the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 are not for consideration where the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). Thus, no higher rating is available due to functional loss. The Board concludes that the objective medical evidence and the Veteran's statements regarding his symptomatology show disability that most nearly approximates that which warrants the assignment of a 20 percent disability rating for the right ankle disability. See 38 C.F.R. § 4.7. As shown above, and as required by Schafrath, the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran. The Board finds no provision upon which to assign a greater or separate rating. B. Left Little Finger Disability The Veteran seeks a compensable rating for his left fifth finger disability. The Veteran was afforded a VA examination in January 2015. The examiner noted that the Veteran had a left little proximal interphalangeal (PIP) joint dislocation with resultant PIP instability causing 20 degrees ulnar angulation, swan neck deformity due to volar plate tear, and compensatory over-action of the extensors at the PIP with compensatory flex at the distal interphalangeal joint (DIP) and progressive triggering and traumatic arthrosis of the PIP with catching of the little finger due to the angulation, pain in the PIP, and flexor mechanism triggering all causing an effect on activities of daily living because of catching on objects and pain in the PIP due to traumatic arthrosis. On examination, the Veteran had pain with use of the hand and there was objective evidence of localized tenderness/pain on palpation of the joint. Regarding range of motion, the Veteran had full active range of motion of the DIP, however the examiner noted that the Veteran had 20 degrees of hyperextension of the PIP so that the resting position of the DIP was at 20 degrees of flexion. The examiner indicated that pain, fatigue, weakness, lack of endurance, and incoordination significantly limited functional ability with repeated use over time. The examiner found that the 5th finger disability does not result in limitation of motion of the other digits, nor does it interfere with overall hand function. The examiner found that the functioning is not so diminished that amputation would equally serve the Veteran. X-rays showed moderate to severe arthritic disease with medial subluxation of the middle phalanx at the PIP of the fifth digit; moderate degenerative arthritic disease at the DIP of the fifth digit; and mild degenerative arthritic disease of the first metacarpal phalangeal (MCP) joint and the rest of the distal interphalangeal joints. The Veteran's left fifth finger disability is currently rated as non-compensable under the criteria of 38 C.F.R. § 4.71a, Diagnostic Code 5230. Under this Diagnostic Code, a noncompensable rating is assigned for any limitation of motion of the ring or little finger regardless if the affected hand is dominant or minor. This rating code does not provide for a compensable rating. 38 C.F.R. § 4.71a, Diagnostic Code 5230. The Board finds that a compensable rating is not warranted under Diagnostic Code 5230. Any level of limitation of motion of a ring finger results in a noncompensable rating. See Sowers v. McDonald, 27 Vet. App. 472, 480 (2016) (there is no minimum compensable rating available for painful motion under Diagnostic Code 5230 for the ring and little finger). Thus, even with consideration of 38 C.F.R. § 4.59 and Burton, a compensable rating is not warranted. A key distinction between the facts in Sowers and the facts of this case is that in Sowers, the appellant did not have any diagnosed arthritis in the joints for which he sought a compensable rating. Here, however, the Veteran does have arthritis diagnosed by x-ray in multiple joints of the left 5th finger. DC 5003 provides that if arthritis is established in the joints involved, when "the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion." The January 2015 VA examiner found that the Veteran had 20 degrees of hyperextension of the PIP so that the resting position of the DIP was at 20 degrees of flexion. X-rays showed degenerative changes in the MCP, DIP, and PIP joints. Thus, during the appeal period the evidence shows both limitation of motion and degenerative changes by x-ray at the MCP, DIP, and PIP joints. For the purposes of rating a disability from arthritis, multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities are classified as groups of minor joints (and consequently a single such joint is a minor joint), ratable on a parity with major joints. 38 C.F.R. § 4.45 (f). Thus, the Veteran's DIP, PIP and MCP joints in his left 5th finger comprise a group of minor joints, and may be rated as such. 38 C.F.R. § 4.14. As there is a group of minor joints affected by limitation of motion and arthritis is objectively confirmed by x-ray, the Board grants a rating of 10 percent under DC 5003, which is the maximum rating available for the type of disability involved. The Board finds that a 10 percent rating, but no higher, is warranted for limitation of motion and arthritis of the left 5th finger. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3, 4.71a, DC 5003; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). There are no additional expressly or reasonably raised issues presented on the record. ORDER As new and material evidence has been received, the Veteran's claim of entitlement to service connection for bilateral hearing loss is reopened; the appeal is granted to this extent only. As new and material evidence has been received, the Veteran's claim of entitlement to service connection for tinnitus is reopened. Entitlement to service connection for tinnitus is granted. A rating of 20 percent, and no higher, for a right ankle disability is granted, subject to the laws and regulations governing the award of monetary benefits. An initial 10 percent rating under Diagnostic Code 5003, and no higher, for a left 5th finger disability is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND After a careful review of the Veteran's claims file the Board finds that further development is required prior to adjudicating the remaining issues on appeal. Regarding entitlement to service connection for low back and left hip conditions, the Veteran contends that they were caused by his service-connected right ankle disability. Specifically, the Veteran contends that his right ankle disability altered his gait, which led to the development of his low back and left hip conditions. See November 2013 Claim; July 2014 Statement in Support of Claim. The Veteran was afforded VA examinations of the low back and left hip in July 2014. The VA examiner opined that a low back condition was not due to or the result of his right ankle disability because the Veteran started complaining of low back pain in approximately 2008 and because there were no complaints in the military or prior to 2008. The examiner noted that December 2008 x-rays revealed mild to moderate lumbar facet degenerative changes and spurring. An MRI revealed a small central disk protrusion at L4-5, and mild lumbar spondylosis. Regarding a left hip condition, a July 2014 VA examiner opined that the condition was less likely due to the Veteran's right ankle disability because "there is no evidence that the degenerative changes seen on today's x-rays would be due to an ankle sprain sustained 50 years ago, rather than the normal aging process in a 71 year old man." The examiner indicated that July 2014 x-rays revealed mild degenerative joint disease of the right hip joint, surgical staples, and surgical mesh. Degenerative joint disease was noted of the left hip. Neither examiner discussed gait changes. The Veteran subsequently submitted the December 2014 opinion of his private physician that the Veteran's right ankle disability most likely has had an impact on the development of "right hip and back problems over the course of the past [five] decades." Notably, the physical examination consisted of only the right ankle and x-rays were taken of only the right ankle. Also, Dr. A.L. linked the Veteran's right hip to his right ankle, and did not identify a diagnosis of the low back he attributed as due to the right ankle. Pain alone, without a diagnosed or identifiable underlying condition, is generally not a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). In a November 2016 addendum opinion, a VA examiner opined that the Veteran's right ankle disability did not cause or aggravate his left hip or low back conditions because his right ankle disability "did not place chronic excess stress" on his hip or lumbar spine. The examiner did not specifically address the Veteran's specific argument that gait changes resulted in disability to the left hip and back. The Veteran subsequently submitted an addendum to the December 2014 private opinion in May 2017, which was authored by the same physician. The physical examination consisted of only the right ankle although the physician observed that the Veteran walked "with a slight antalgic gait." The physician indicated that the Veteran's longstanding right ankle injury "has likely resulted in [an] abnormal gait, which then has caused right hip and back problems." The physician added that he advised the Veteran that there was no specific evidence that could be pointed to definitely prove that his back and hip problems arose from his ankle but that in his opinion his longstanding gait abnormalities had been a contributing factor. Again, Dr. A.L. linked the Veteran's right hip to his right ankle, and did not identify a diagnosis of the low back he attributed as due to the right ankle. Thus, Dr. A.L.'s opinion is insufficient to warrant a grant of service connection. The Board, however, will seek an addendum opinion that addresses the Veteran's specific gait argument. Regarding the issue of entitlement to service connection for bilateral hearing loss, the Board finds that a VA addendum medical opinion is necessary before the claim can be decided on the merits. The Veteran was afforded a VA audiological examination in March 2015. Following a physical examination of the Veteran and a review of the claims file, the VA examiner determined that the Veteran currently had bilateral hearing loss. The examiner opined that the Veteran's bilateral hearing loss was not related to service because there were no significant threshold shifts during military service and no record of complaints or treatment for hearing loss in the service treatment records. In Hensley v. Brown, 5 Vet. App. 155 (1993), the United States Court of Appeals for Veterans Claims (Court) held that even though a hearing disorder may not have been demonstrated at separation, a veteran may still establish service connection for a current hearing disorder by showing he now has a hearing disorder and by submitting evidence that his current hearing disability is related to his active military service. See also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). In Hensley, there was an upward shift in threshold levels at some frequencies on an examination for separation and in-service audiometric testing yielded elevated thresholds at some frequencies. Thus, the Court found that the claim could not be denied solely because the hearing loss did not meet the criteria for 38 C.F.R. § 3.385 at separation. Rather, if there were any current hearing loss (by VA standards) it had to be determined whether shifts in auditory thresholds during service represented the onset of any current hearing loss (even if first diagnosed a number of years after service). Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current hearing disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record including that pertinent to service. See 38 U.S.C.A. §§ 1110; C.F.R. §§ 3.303 and 3.304; Hensley, 5 Vet. App. at 159-60. Here, the VA examiner based his negative nexus opinion regarding the Veteran's bilateral hearing loss on the Veteran's normal audiological evaluations at entrance and at separation. However, the Board notes that an audiogram dated in August 1966 appears to show a significant threshold shift in the right ear when compared to the Veteran's October 1964 entrance examination. The examiner did not address this evidence in rendering a negative nexus opinion. In light of the foregoing, the claim must be remanded for an addendum opinion with an adequate rationale regarding the etiology of the Veteran's diagnosed bilateral hearing loss. 38 C.F.R. § 3.159 (c)(4); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence...is essential for a proper appellate decision"). Lastly, as the record reflects that the Veteran receives ongoing VA and private treatment, updated treatment records should be obtained on remand. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain and associate with the Veteran's claims file all outstanding VA treatment records for the period from June 2017 to the present, documenting treatment for the issues on appeal. The Veteran should also be given the opportunity to identify and/or submit any additional private treatment records pertinent to his claim. 2. After all available records have been associated with the claims file, obtain an addendum opinion from a physician (M.D.) regarding the Veteran's low back and left hip conditions. The claims file and a copy of this REMAND must be made available to the reviewing examiner, and the examiner shall indicate in the addendum report that the claims file was reviewed. If an examination is deemed necessary in rendering the addendum opinion, another evaluation should be conducted. Following a review of the claims file, and if necessary an examination of the Veteran, in light of the Veteran's contention that gait alterations due to his service-connected right ankle disability led to his current low back condition, the reviewing examiner should provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the mild to moderate lumbar facet degenerative changes and spurring shown on December 2008 x-rays and small central disk protrusion at L4-5 and mild lumbar spondylosis shown on MRI were (1) caused by or (2) aggravated by the Veteran's right ankle disability due to any gait changes caused by the right ankle disability. If such aggravation is found, the examiner should determine: (a) the baseline manifestations of the Veteran's low back condition absent the effect of aggravation, and (b) the increased manifestations that are proximately due to the right ankle disability. Additionally, in light of the Veteran's contention that gait alterations due to his service-connected right ankle disability led to his current left hip condition, the reviewing examiner should provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the degenerative joint disease of the left hip condition was (1) caused by or (2) aggravated by the Veteran's right ankle disability, due to any gait changes caused by the right ankle disability. If such aggravation is found, the examiner should determine: (a) the baseline manifestations of the Veteran's left hip condition absent the effect of aggravation, and (b) the increased manifestations that are proximately due to the right ankle disability. The examiner should specifically review and comment on the December 2014 and May 2017 opinions of the Veteran's private physician, Dr. A.L., who indicated that the Veteran's right ankle disability has led to gait changes which have caused back problems. If necessary, and to the extent possible, the examiner should reconcile his opinion with Dr. A.L.'s findings. The examiner's report must reflect consideration of the Veteran's entire documented medical history and assertions and all lay evidence, to include the Veteran's contentions that gait alterations due to his service-connected right ankle disability led to his current low back and left hip conditions. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner must provide a thorough rationale for each opinion given. 3. After all available records have been associated with the claims file, obtain an addendum opinion regarding the nature and etiology of the Veteran's diagnosed bilateral hearing loss. The claims file and a copy of this REMAND must be made available to the reviewing examiner, and the examiner shall indicate in the addendum report that the claims file was reviewed. If an examination is deemed necessary in rendering the addendum opinion, another evaluation should be conducted. Following a review of the claims file, and if necessary an examination of the Veteran, the reviewing examiner should provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's bilateral hearing loss had its onset during service or is causally or etiologically due to in-service noise exposure. In so opining, the examiner must do the following: (a) Review and comment on the in-service audiograms of record and discuss the shifts in hearing thresholds between the Veteran's entrance into service in October 1964 and his separation from service in August 1966. (b) Explain the significance of the absence or presence of threshold shifts and severity of such threshold shifts in relation to the likelihood that military noise exposure caused permanent hearing damage. (c) Explain the significance of normal hearing in relation to the likelihood military noise exposure caused permanent hearing damage, including addressing theories of delayed/latent onset of hearing loss. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history and the relevant sciences as applicable to this case, which may reasonably explain the medical guidance in this study of this case. 4. After the above development has been completed, review the file and ensure that all development sought in this REMAND is completed. Arrange for any further development indicated by the results of the development requested above, and then re-adjudicate the claims. If benefits sought on appeal remain denied, supply the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the case should be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs