Citation Nr: 18148421 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 15-25 841 DATE: November 8, 2018 ORDER New and material evidence having been submitted, the claim for service connection for a low back disability is reopened, and to this extent only the appeal is granted. As new and material evidence has not been received, the appeal to reopen a claim for service connection for a left foot/ankle disability is denied. Entitlement to service connection for severe peripheral artery disease, also claimed as iliac artery occlusion with oxygen deprivation, including secondary to service-connected coronary artery disease, is denied. Entitlement to compensation under 38 U.S.C. § 1151 for ureter damage to include urinary incontinence claimed as a residual of aorto-iliac bypass graft surgery performed at the Oklahoma City VA Medical Center on January 22, 2013, is denied. Entitlement to service connection for precancerous cysts of the left hand and back is denied. Entitlement to service connection for nerve damage/peripheral neuropathy of the left upper extremity is denied. Entitlement to service connection for nerve damage/peripheral neuropathy of the right upper extremity is denied. Entitlement to service connection for nerve damage/peripheral neuropathy of the left lower extremity is denied. Entitlement to service connection for nerve damage/peripheral neuropathy of the right lower extremity is denied. Entitlement to an initial compensable evaluation for bilateral hearing loss is denied. Entitlement to an initial evaluation in excess of 10 percent for tinnitus is denied. REMANDED The reopened claim of entitlement to service connection for a low back disability is remanded. Entitlement to service connection for numbness and tingling in the upper back region is remanded. FINDINGS OF FACT 1. In a March 2008 rating decision, the RO denied the Veteran’s original claim seeking service connection for a low back disability and for a left foot/ankle disability. The Veteran did not perfect an appeal of the March 2008 rating decision or submit new and material evidence during the appeal period, and that decision is final. 2. Some of the evidence received since the March 2008 rating decision is new and relates to unestablished facts necessary to substantiate the claim for service connection for a low back disability. 3. The evidence associated with the claims file since the March 2008 rating decision, when considered by itself or in connection with evidence previously assembled, does not relate to an unestablished fact necessary to raise a reasonable possibility of substantiating the claim of service connection for a left foot/ankle disability. 4. The preponderance of the evidence is against finding peripheral artery disease was shown in service or within one year following service, or is related to service or caused or aggravated by a service-connected disability. 5. The Veteran does not have ureter damage to include urinary incontinence that was caused or aggravated by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing medical treatment; nor was it the result of an event not reasonably foreseeable. 6. The preponderance of the evidence is against finding that precancerous cysts of left hand and back began during active service, or are otherwise related to service. 7. The preponderance of the evidence is against finding that the Veteran’s current nerve damage/peripheral neuropathy of the upper and lower extremities began during active service or within one year following service, or is related to service or caused or aggravated by a service-connected disability. 8. Throughout the appeal, the Veteran’s service-connected bilateral hearing loss was manifested by no worse than Level IV hearing loss in the left ear and Level II hearing loss in the right ear. 9. The Veteran is in receipt of the maximum schedular disability rating for his tinnitus. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of service connection for a low back disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 2. The criteria for reopening the claim of service connection for a left foot/ankle disability have not been met. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156 (2018). 3. The criteria for service connection for severe peripheral artery disease, also claimed as iliac artery occlusion with oxygen deprivation, are not met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2018). 4. The criteria for compensation pursuant to the provisions of 38 U.S.C. § 1151 for ureter damage to include urinary incontinence claimed as a residual of aorto-iliac bypass graft surgery performed at the Oklahoma City VA Medical Center on January 22, 2013, have not been met. 38 U.S.C. §§ 1151, 5107 (2012); 38 C.F.R. § 3.361 (2018). 5. The criteria for service connection for precancerous cysts of the left hand and back are not met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. § 3.303 (2018). 6. The criteria for service connection nerve damage/peripheral neuropathy of the left upper extremity are not met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2018). 7. The criteria for service connection nerve damage/peripheral neuropathy of the right upper extremity are not met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2018). 8. The criteria for service connection nerve damage/peripheral neuropathy of the left lower extremity are not met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2018). 9. The criteria for service connection nerve damage/peripheral neuropathy of the right lower extremity are not met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2018). 10. The criteria for an initial compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2018). 11. The criteria for an initial evaluation in excess of 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1966 to February 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). New and Material Evidence Generally, 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 (2018). New evidence means existing evidence not previously submitted to VA. 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. 38 C.F.R. § 3.156(a) (2018). 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. Id. The Court has held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence can be construed as that which would contribute to a more complete picture of the circumstances surrounding the origin of a Veteran's disability or injury, even when it would not be enough to convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). 1. Whether new and material evidence has been submitted to reopen a claim seeking service connection for a low back disability. Service connection for a low back disability was denied in a March 2008 rating decision on the basis that no complaints of or treatment for a low back disability was shown during the Veteran’s military service, and there was no evidence suggesting a link between the Veteran’s current low back disability and his miliary service. The Veteran did not submit a timely notice of disagreement or new and material evidence during the appeal period, and the decision became final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156 (b), 20.302, 20.1103. In January 2014, the Veteran filed to reopen his claim seeking service connection for a low back disability. The evidence received since the March 2008 rating decision includes evidence of a January 2014 letter from S.L., M.D. In the letter, Dr. L. noted that the Veteran failed a June 1970 pre-employment physical with a diagnosis of permanent injury to the lower lumbar region. Dr. L. also noted that she knew the Veteran shortly after his discharge from the service in 1968, and that she was not aware of any injury to his back that occurred between his discharge and his post service diagnosis of permanent injury to the lower lumbar region of the back. As the threshold to reopen the claim is low, the Board finds that this evidence, when considered with the other evidence of record, at least triggers the need for a VA examination. See Shade, supra. Accordingly, the new evidence, when considered in conjunction with prior evidence, is sufficiently new and material, and the claim for service connection for a low back disability is reopened. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a left foot/ankle disability. The RO’s March 2008 rating decision determined that the Veteran’s left foot/ankle disability was not shown during his military service, that there was no evidence of a current left foot/ankle disability, and that there was no link shown between the Veteran’s claimed left foot/ankle disability and his military service from February 1966 to February 1968. In January 2014, the Veteran filed to reopen his claim for service connection for a current left foot/ankle disability. In July 2014, the RO issued a rating decision that found no new and material evidence had been submitted to reopen the Veteran’s claim. Regardless of the RO’s actions, the Board must still determine whether new and material evidence has been submitted. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996). In support of his claim to reopen, the Veteran contends that he injured his left ankle/foot during his service in Vietnam. This contention was previously before the RO at the time of its March 2008 rating decision; accordingly, this evidence is cumulative of the previously considered evidence. The Board also notes that while additional post service treatment records have been added to the Veteran’s claims file, there remains no evidence of a current left foot/ankle disability. Although new, these additional treatment reports are not material to the Veteran’s claimed left foot/ankle disability. The evidence received since the RO’s March 2008 rating decision is cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, does not relate to an unestablished fact, and/or does not raise a reasonable possibility of substantiating the claims. 38 C.F.R. § 3.156(a). As the Veteran has not submitted new and material evidence showing or even suggesting that his claimed left foot/ankle disability is in any way related to his military service, reopening the claim is not warranted and the claim must be denied. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection may be established for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (2018). Further, a disability that is aggravated by a service-connected disability may be service connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). 3. Entitlement to service connection for severe peripheral artery disease also claimed as iliac artery occlusion with oxygen deprivation. The Veteran contends that he developed severe peripheral artery disease, claimed as iliac artery occlusion with oxygen deprivation, during his military service. Alternatively, he contends that he developed this condition secondary to his service-connected coronary artery disease The question for the Board is whether the Veteran has a current disability that began during service or is related to service or a service-connected disability. The Board concludes that, while the Veteran has a current diagnosis of peripheral artery disease, the preponderance of the evidence weighs against finding that the Veteran’s peripheral artery disease began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Initially, the Board finds that there is no evidence of peripheral artery disease during his military service, or within the first post service year. His January 1968 separation examination listed his heart and vascular system as normal. Post service treatment records are also silent for this condition for more than thirty years after his separation from service. Further, the VA examiner in February 2015 opined that the Veteran’s peripheral artery disease is less likely in or caused by his miliary service, or related to his service-connected coronary artery disease. The rationale was that there was no evidence of this condition during service or for decades thereafter, that the Veteran’s peripheral vascular disease involving the aortic and iliac arteries are not anatomically or physiologically caused by disease in the coronary arteries. The examiner also noted that while both of these conditions have similar risk factors, these conditions do not cause one another. The VA examiner further noted that the Veteran has independent risk factors for developing peripheral vascular disease, including being a chronic smoker and having dyslipidemia. Finally, the VA examiner noted that the Veteran’s peripheral vascular disease is much more severe than his coronary artery disease; thus, it is not aggravated by the coronary artery disease. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran believes his peripheral artery disease is related to his service-connected coronary artery disease, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the VA examiner’s February 2015 medical opinion. 4. Entitlement to service connection for precancerous cysts of the left hand and back. The Veteran contends that he developed precancerous cysts of the left hand and back as a result of his miliary service, including in-service exposure to Agent Orange. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of precancerous cysts of the left hand and back, the preponderance of the evidence is against finding that either began during active service, or are otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). A review of his service treatment records was completely silent as to any complaints of or treatment for precancerous cysts of the left hand and back. His January 1968 separation examination listed his skin and spine as normal. On a medical history report, completed in January 1968, the Veteran denied having any history of skin disease. Post service treatment records are also silent for this condition for more than thirty years after his separation from service. Moreover, this condition is not one recognized by VA as resulting from Agent Orange exposure; therefore, presumptive service connection is not warranted. 38 C.F.R. §§ 3.307, 3.309(e). Nor is there any competent evidence suggesting his precancerous cysts of the left hand and back are related to service, to include Agent Orange exposure. While the Veteran believes his precancerous cysts of the left hand and back are related to his military service, as a lay person he is not competent to provide such opinion, as the etiology of skin conditions requires medical expertise to determine. Accordingly, the preponderance of the evidence is against the claim and service connection is denied. 5–8. Entitlement to service connection for nerve damage/peripheral neuropathy of the upper and lower extremities. The Veteran contends that he developed nerve damage/peripheral neuropathy of the upper and lower extremities during his miliary service. Alternatively, he contends that he developed this condition secondary to his service-connected coronary artery disease. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran currently has nerve damage/peripheral neuropathy of the upper and lower extremities, the preponderance of the evidence weighs against finding that the Veteran’s nerve damage/peripheral neuropathy of the upper and lower extremities began during service or within the year following discharge from service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1112, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303, 3.307, 3.309. Initially, the Board finds that there is no evidence of nerve damage/peripheral neuropathy of the upper and lower extremities during his military service, or within the first post service year. His January 1968 separation examination listed his extremities as normal. Post service treatment records are also silent for this condition for more than four decades after his separation from service. Further, the VA examiner in February 2015 opined that the etiology of the Veteran’s nerve damage/peripheral neuropathy of the upper and lower extremities is unknown, but his most likely secondary to his nonservice-connected peripheral vascular disease. In support of this opinion the VA examiner noted that the Veteran was not diabetic. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez, 22 Vet. App. at 304 (2008). While the Veteran believes his peripheral neuropathy of the upper and lower extremities is related to his service-connected coronary artery disease, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body. Jandreau, 492 F.3d at 1377. Consequently, the Board gives more probative weight to the VA examiner’s February 2015 medical opinion. Entitlement under 38 U.S.C. § 1151 9. Whether compensation under 38 U.S.C. § 1151 for ureter damage to include urinary incontinence claimed as a residual of aorto-iliac bypass graft surgery performed at the Oklahoma City VA Medical Center on January 22, 2013, is warranted. The Veteran is seeking compensation under 38 U.S.C. § 1151 for ureter damage to include urinary incontinence as a residual of aorto-iliac bypass graft surgery performed at the Oklahoma City VA Medical Center on January 22, 2013. A veteran may be awarded compensation for additional disability, not the result of his or her willful misconduct, if the disability was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by VA, either by a VA employee or in a VA facility as defined in 38 U.S.C. § 1701(3)(A), and the proximate cause of the disability was (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment or examination, or (2) an event not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. In determining whether additional disability exists, the Board will compare a veteran’s physical condition immediately prior to the disease or injury upon which the claim for compensation is based with his physical condition subsequent thereto. With regard to medical or surgical treatment, a veteran’s physical condition prior to the disease or injury is the condition which the medical or surgical treatment was intended to alleviate. Compensation is not payable if the additional disability or death results from the continuance or natural progress of the disease or injury for which the training, treatment, or hospitalization was authorized. 38 C.F.R. § 3.358(b)(1), (2). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the Veteran’s additional disability or death. Merely showing that a Veteran received care or treatment and that the Veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment was furnished unless VA’s failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361. Under 38 C.F.R. § 3.361, to establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part, it must be shown that the VA failed to exercise the degree of care that would be expected of a reasonable health care provider. Whether the proximate cause of an additional disability is an event not reasonably foreseeable is to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with informed consent. 38 C.F.R. § 3.361(d). Based upon a longitudinal review of the record, the Board concludes that the Veteran does not have ureter damage to include urinary incontinence that was caused or aggravated by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing medical treatment; nor was it the result of an event not reasonably foreseeable. A July 2014 VA examiner’s opinion concluded that the Veteran does not have any additional disability due to carelessness, negligence, lack of proper skills, error in judgment or similar instance of fault on the part of the VA. In support of this opinion, the VA examiner noted that VA treatment records from August 2011 through July 2014 did not document any ureter or urinary problems associated with his surgery. The examiner also noted that the surgical records indicated that for a period of time during and following the bypass grafting surgery, a urinary catheter was need, but there was no documentation of any ureter damage, to include urinary incontinence that had been present. Finally, the examiner noted that the Veteran gave informed consent for this procedure. Although the Veteran contends that his January 22, 2013 vascular surgery was the cause of this condition, as a layperson, he is not competent to render a medical opinion on matters requiring medical expertise, to include the medical question of whether the Veteran has additional disability caused by VA negligence or fault or an event not reasonably foreseeable. See Jandreau, supra. Thus, the Board finds the opinion provided by the July 2014 VA examiner to be of significantly greater probative value than the Veteran’s lay assertion. Accordingly, the Board concludes that a preponderance of the evidence is against the Veteran’s claim for compensation under the provisions of 38 U.S.C. § 1151. As the preponderance of the evidence is against this issue, the benefit-of-the- doubt rule does not apply, and the Veteran’s claim of entitlement to compensation under the provisions of 38 U.S.C. § 1151 for ureter damage to include urinary incontinence is denied. 38 U.S.C. § 5107(b). Increased Rating Claims Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 10. Entitlement to an initial compensable evaluation for bilateral hearing loss. The Veteran is seeking a compensable initial evaluation for his service-connected bilateral hearing loss. In conjunction with his claim, a VA audiological examination was conducted in June 2014. The Veteran complained of decreased hearing bilaterally and difficulty hearing and understanding people. Audiometric testing showed pure tone thresholds of 45, 55, 60, and 65 decibels in the Veteran’s right ear and 30, 60, 65, and 70 decibels in his left ear at the specified frequencies. 38 C.F.R. § 3.385. Average pure tone thresholds were 56 decibels in the right ear and 56 decibels in the left ear. Speech recognition scores were 86 percent in the right ear and 80 percent in the left ear. Applying the results of the audiological testing to Table VI yields a finding of Level II hearing loss in the right ear and Level IV hearing loss in the left ear. Accordingly, a noncompensable evaluation is warranted under Table VII. 38 C.F.R. § 4.85. The Board sympathizes with the Veteran’s complaints regarding the functional impact of his hearing loss on his daily life. However, the assignment of disability ratings for hearing impairment is derived from a mechanical formula based on levels of pure tone threshold average and speech discrimination. Thus, the medical evidence of record is more probative than lay contentions as to the extent of the Veteran’s hearing loss. The Board finds the VA examination in particular, to be highly probative, and notes that it was conducted in accordance with 38 C.F.R. § 4.85(a). Moreover, the VA examiner addressed the effects of the Veteran’s hearing loss on his daily activities and occupational functioning. Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). In sum, the most probative evidence of record reflects findings consistent with a noncompensable rating for bilateral hearing loss throughout the period on appeal. Accordingly, entitlement to a compensable initial evaluation for bilateral hearing loss is not warranted. 11. Entitlement to an initial evaluation in excess of 10 percent for tinnitus. The Veteran contends that his tinnitus should be rated higher than the currently assigned 10 percent disability rating. Tinnitus is rated under 38 C.F.R. § 4.87, Diagnostic Code 6260, which provides a maximum 10 percent evaluation for recurrent tinnitus. 38 C.F.R. § 4.87, Diagnostic Code 6260. Note (2) provides that a single evaluation for recurrent tinnitus is to be assigned, whether tinnitus is present in one or both ears. Id. A higher evaluation for tinnitus is not available in the Rating Schedule. The Board has reviewed the evidence of record and finds that a disability rating in excess of 10 percent for tinnitus is not warranted during the appeal. Specifically, the Veteran is already in receipt of the maximum schedular disability rating for his tinnitus. During the June 2014 VA examination, the examiner noted the Veteran’s had non-disabling constant tinnitus. In sum, as 10 percent is the maximum schedular rating for tinnitus, a higher evaluation for that disability is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56.   REASONS FOR REMAND 1. The reopened claim of entitlement to service connection for a low back disability is remanded 2. Entitlement to service connection for a low back disability and numbness and tingling in the upper back region is remanded. The Veteran contends that he injured his back during his military service. He served on active duty from February 1966 to February 1968. A January 2014 letter from S.L., M.D., noted that the Veteran failed a June 1970 pre-employment physical with a diagnosis of permanent injury to the lower lumbar region. Dr. L. also noted that she knew the Veteran shortly after his discharge from the service in 1968, and that she was not aware of any injury to his back that occurred between his discharge and his post service diagnosis of permanent injury to the lower lumbar region of the back. The Board finds an examination to obtain a medical opinion is warranted. Because a decision on the remanded issue of entitlement to servcie connection for a low back disability could significantly impact a decision on the issue entitlement to service connection for numbness and tingling in the upper back region, the issues are inextricably intertwined. A remand of this claim is therefore required. The matter is REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have treated his upper and lower back. After securing any necessary release, the request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are not available, the Veteran should be notified of such. 2. After completion of the foregoing, schedule the Veteran for a VA back examination. The claims file must be reviewed in conjunction with the examination. All indicated tests should be conducted. Following examination of the Veteran and review of the claims file, the examiner should provide an opinion on whether it is at least as likely as not (50 percent probability or greater) that any current upper and lower back disabilities found arose during service or are otherwise etiologically related to service. A complete rationale for all opinions must be provided. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD W. Yates, Counsel