Citation Nr: 18148863 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 14-35 605 DATE: November 8, 2018 ORDER New and material evidence having not been received, the claim to reopen the previously denied claim for entitlement to service connection for bilateral hearing loss is denied. New and material evidence has been received to reopen a claim for entitlement to service connection for posttraumatic stress disorder (PTSD), and the claim is reopened. Entitlement to service connection for PTSD, to include as due to military sexual trauma, is granted. Entitlement to service connection for a left ankle disability is denied. Entitlement to service connection for a right ankle disability is denied. Entitlement to service connection for antisocial personality disorder with alcohol abuse in early full remission is denied. Entitlement to service connection for depression is denied. Entitlement to an initial rating of 10 percent, but no higher, for bilateral flat feet is granted. REMANDED Entitlement to service connection for degenerative arthritis of the lumbosacral spine is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. A February 2010 rating decision denied the Veteran’s claims for entitlement to service connection for bilateral hearing loss and PTSD. The Veteran did not appeal that decision and therefore, it became final. 2. Evidence received since the February 2010 rating decision with respect to the Veteran’s claim for entitlement to service connection for bilateral hearing loss is cumulative or redundant of evidence of record at the time of such decision and does not raise a reasonable possibility of substantiating the Veteran’s claim for service connection for bilateral hearing loss. 3. Evidence received since the February 2010 rating decision is new and material as it relates to unestablished facts necessary to substantiate the Veteran’s claim for entitlement to service connection for PTSD, and raises a reasonable possibility of substantiating the claim. 4. It is at least as likely as not that the Veteran’s PTSD due to military sexual trauma had its onset during service. 5. The preponderance of the evidence is against a finding that the Veteran has, or has had at any time during the appeal, a diagnosis of a left ankle disability. 6. The preponderance of the evidence is against a finding that the Veteran has, or has had at any time during the appeal, a diagnosis of a right ankle disability. 7. The preponderance of the evidence is against a finding that the Veteran has, or has had at any time during the appeal, a diagnosis of a depression. 8. Antisocial personality disorder with alcohol abuse is not a disability for which service connection may be granted. 9. The Veteran’s bilateral flat feet are characterized by painful motion. CONCLUSIONS OF LAW 1. The July 2010 rating decision that denied the Veteran’s claims for entitlement to service connection for bilateral hearing loss and PTSD is final. 38 U.S.C. §§ 7104, 7015(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156(a). 3. New and material evidence has been received to reopen the claim of entitlement to service connection for PTSD, to include as due to military sexual trauma. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156(a). 4. Resolving all reasonable doubt in favor the Veteran, the criteria for service connection for PTSD due to military sexual trauma have been met. 38 U.S.C. §§ 1101, 1110, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. 5. The criteria for entitlement to service connection for a left ankle disability have not been met. 38 U.S.C. §§ 1101, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. 6. The criteria for entitlement to service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1101, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. 7. The criteria for entitlement to service connection for depression have not been met. 38 U.S.C. §§ 1101, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. 8. The criteria for entitlement to service connection for antisocial personality disorder with alcohol abuse in early full remission have not been met. 38 U.S.C. §§ 1101, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. 9. The criteria for entitlement to an initial rating of 10 percent, but no higher, for bilateral flat feet have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.71a, Diagnostic Code 5276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from July 1983 to May 1987. Neither the appellant nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). New and Material Evidence Generally, a final decision may not be reopened and allowed, and a claim based on the same factual basis may not be considered. However, under 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition. 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). The Court has held that in determining whether the evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board is required to give consideration to all of the evidence received since the first denial of the claim in light of the totality of the record. See Hickson v. West, 12 Vet. App. 247, 251 (1999). In this regard, the Court in Shade v. Shinseki, 24 Vet. App. 110 (2010) held that the language of 38 C.F.R. § 3.156(a) created a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Further, 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 VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The question of whether new and material evidence has been received to reopen a claim must be addressed in the first instance by the Board because the issue goes to the Board’s jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Id at 1369. If it is determined that new and material has been submitted, the claim must be reopened. The Board may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for bilateral hearing loss The Veteran’s claim for entitlement to service connection for bilateral hearing loss was originally denied in a February 2010 rating decision, was not appealed, and subsequently became final. 38 U.S.C. §§ 7104, 7105. The Veteran’s claim was denied at this time because the Veteran had not submitted evidence indicating that he had a current bilateral hearing loss disability. Since the filing of his claim to reopen the claim for entitlement to service connection for bilateral hearing loss in July 2012, the Veteran has submitted post-service treatment records, but has not submitted any additional evidence with respect to his alleged bilateral hearing loss. The Veteran’s post-service treatment records do not indicate that the Veteran has a current bilateral hearing loss disability. Accordingly, the Board finds that none of the evidence submitted since the February 2010 rating decision relates to a previously unestablished fact and therefore, the Board finds that the claim for entitlement to service connection for bilateral hearing loss is not reopened as new and material evidence has not been received. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for posttraumatic stress disorder (PTSD) due to military sexual trauma The Veteran’s claim for entitlement to service connection for PTSD was originally denied in a February 2010 rating decision and the denial was continued in a July 2010 rating decision. The denial was not appealed and subsequently became final. 38 U.S.C. §§ 7104, 7105. At the time of the February 2010 denial, the competent evidence of record included the Veteran’s service-treatment records, military personnel records, and statements from the Veteran in support of his claim. See, July 2010 rating decision. The Board finds that new and material evidence has been submitted since the February 2010 rating decision. Specifically, the newly submitted evidence includes updated VA post-service treatment records, a June 2012 Mental Health report, and a VA examination. The Board finds that the above-mentioned evidence is new in that it was not of record at the time of the previous denials in February 2010 and July 2010. They are material in that they speak directly to the Veteran’s claim for entitlement to service connection for PTSD. Furthermore, when considered with the previous evidence of record, they 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. Shade v. Shinseki, 24 Vet. App. 118 (2010). The new evidence, taken with the evidence already of record, is material to an unestablished fact necessary to substantiate the claim. Therefore, the Board finds that new and material evidence has been submitted and the claim for service connection for PTSD is reopened. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki 708 F.3d 1331. (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). Service connection may also be granted where disability is proximately due to or the result of already service-connected disability. 38 C.F.R. § 3.310. The requirement of a current 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. McClain v. Nicholson, 21 Vet. App. 319 (2007). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, VA shall give the benefit of the doubt to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for posttraumatic stress disorder (PTSD), to include as due to military sexual trauma Generally, service connection for PTSD requires: (1) medical evidence establishing a clear diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) a link, established by medical evidence, between current symptoms and the in-service stressor. 38 C.F.R. § 3.304(f). 38 C.F.R. § 4.125 currently requires a diagnosis of PTSD using the criteria in the 5th edition of the Diagnostic and Statistical Manual for Mental Disorders (DSM-5). Where the veteran did not engage in combat with the enemy, or the claimed stressor is not related to combat, the veteran’s testimony alone is not sufficient to establish the occurrence of the stressor, and it must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128 (1997). If a stressor claimed by a veteran is related to the veteran’s fear of hostile military or terrorist activity and VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this regulation, “fear of hostile military or terrorist activity” means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or any attack upon any friendly military aircraft, and the veteran’s response to the event or circumstance involved a psychological or psych-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3). When the claimed PTSD stressor is physical or sexual assault in service, evidence from sources other than the veteran’s service records may corroborate the veteran’s account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, mental health counseling centers, hospitals, or physicians; and, statements from family members, roommates, fellow service members or clergy. Evidence of behavior changes following the claimed assault is one type of evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from other sources may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA will submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault has occurred. 38 C.F.R. § 3.304(f)(4). Additionally, a medical opinion may be used to corroborate a personal-assault stressor. Menegassi v. Shinseki, 683 F.3d 1379 (Fed. Cir. 2011). As an initial matter, the Board notes that the Veteran’s post-service treatment records reflect a diagnosis of PTSD, which was confirmed during an October 2012 VA examination. See, October 2012 VA examination. With respect to an in-service stressor, the Veteran has consistently and credibly reported that he was sexually assaulted by another service member in 1983 when he was in basic training. The Veteran indicated that he did not report the assault because of “enormous shame and guilt.” During the Veteran’s October 2012 VA examination, the VA psychiatrist stated that the Veteran’s in-service sexual assault satisfied the stressor requirement for a diagnosis of PTSD. See, October 2012 VA examination. Accordingly, the Board considers the Veteran’s report of a military sexual assault while on active duty to be conceded. Therefore, the remaining question before the Board is whether the Veteran’s PTSD is consequent to the in-service sexual assault. In that regard, the Board notes that the VA psychiatrist who examined the Veteran in October 2012 stated that the Veteran has “multiple sexual trauma incidents” to include one in the military, which meet criteria A for a diagnosis of PTSD. As the VA examiner stated that the Veteran’s in-service sexual trauma contributed to his diagnosis of PTSD, and this opinion is not contradicted by another medical evidence of record, the Board finds that service connection for PTSD due to military sexual trauma is warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. Entitlement to service connection for a left ankle disability The Veteran and his representative assert that he has a left ankle disability that began while he was on active duty service. A condition precedent for establishing service connection is the presence of a current disability. The question currently for the Board on this issue 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 the Veteran does not have a current diagnosis of any left ankle disability, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). In this regard, the Board notes the Veteran’s most recent VA examination conducted in connection with his claim. During the October 2012 VA examination, the examiner indicated that the Veteran did not have a diagnosis of any left ankle disability, to include arthritis. In coming to this conclusion, the VA examiner addressed the Veteran’s contention that he twisted his ankle while in-service, but ultimately concluded that the Veteran’s left ankle is normal and no diagnosis was warranted. See, October 2012 VA examination. While the Veteran believes that he has a current diagnosis of a left ankle disability, the Veteran is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. As the Board finds that the Veteran does not have a current diagnosis of a left ankle disability, service connection is therefore denied. 5. Entitlement to service connection for a right ankle disability The Veteran and his representative assert that he has a right ankle disability that began while he was on active duty service. A condition precedent for establishing service connection is the presence of a current disability. The question currently for the Board on this issue 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 the Veteran does not have a current diagnosis of any right ankle disability, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). In this regard, the Board notes the Veteran’s most recent VA examination conducted in connection with his claim. During the October 2012 VA examination, the examiner indicated that the Veteran did not have a diagnosis of any right ankle disability, to include arthritis. In coming to this conclusion, the VA examiner addressed the Veteran’s contention that he twisted his ankle while in-service, but ultimately concluded that the Veteran’s right ankle is normal and no diagnosis was warranted. See, October 2012 VA examination. While the Veteran believes that he has a current diagnosis of a right ankle disability, the Veteran is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. As the Board finds that the Veteran does not have a current diagnosis of a right ankle disability, service connection is therefore denied. 6. Entitlement to service connection for depression The Veteran and his representative assert that he has depression that began while he was on active duty service. A condition precedent for establishing service connection is the presence of a current disability. The question currently for the Board on this issue 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 the Veteran does not have a current diagnosis of any psychiatric disability, to include depression, other than PTSD, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). In this regard, the Board notes the Veteran’s most recent VA examination conducted in connection with his claim. During the October 2012 VA examination, the examiner indicated that the Veteran did not have a diagnosis of any other psychiatric disorder other than PTSD, to include depression. While the Veteran’s June 2012 Mental Health Report indicated a diagnosis of “depression/PTSD,” the VA psychiatrist ultimately concluded that the Veteran’s the depression was a symptom of the Veteran’s PTSD and that no separate diagnosis of depression was warranted. See, October 2012 VA examination. While the Veteran believes that he has a current diagnosis of a depression, the Veteran is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. As the Board finds that the Veteran does not have a current, separate diagnosis of depression, service connection is therefore denied. 7. Entitlement to service connection for antisocial personality disorder with alcohol abuse in early full remission During the Veteran’s October 2012 VA examination, the VA psychiatrist noted that the Veteran had an Axis I diagnosis of alcohol abuse in early full remission and an Axis II diagnosis of antisocial personality disorder. The examiner further noted that the Veteran’s diagnoses were not additional mental disorders and there were no overlapping symptoms between these disorders and the Veteran’s PTSD diagnosis. See, October 2012 VA examination. With respect to the Veteran’s diagnosis of antisocial personality disorder with alcohol abuse in full early remission, the Board notes that personality disorders are not diseases or injuries in the meaning of applicable legislation for disability compensation purposes and therefore, the grant of service connection for a personality disorder, such as antisocial personality disorder with alcohol abuse in full early remission, is not warranted. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA’s Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. See 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, “staged” ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board observes that the words “slight,” “moderate,” and “severe” are not defined in the 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. It should also be noted that use of descriptive terminology such as “mild” by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C. § 7104 (a); 38 C.F.R. §§ 4.2, 4.6. Once the evidence has been assembled, it is the Board’s responsibility to evaluate the evidence. 38 U.S.C. § 7104 (a). 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. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 8. Entitlement to an initial compensable rating for bilateral flat feet The Veteran and his representative assert that he is entitled to a compensable rating for his service-connected bilateral flat feet. The Veteran’s service-connected flat feet are current rated under Diagnostic Code 5276, which provides ratings for acquired flatfoot. See, 38 C.F.R. § 4.71a. Mild flatfoot with symptoms relieved by built-up shoe or arch support is rated as 0 percent disabling. Moderate flatfoot with weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral, is rated 10 percent disabling. Severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, is rated 20 percent disabling for unilateral disability and is rated 30 percent disabling for bilateral disability. Pronounced flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo achillis on manipulation, that is not improved by orthopedic shoes or appliances, is rated 30 percent disabling for unilateral disability and is rated 50 percent disabling for bilateral disability. Id. The Veteran need not “show all the findings specified” in the pronounced criteria of Diagnostic Code 5276 to obtain a 50 percent rating for bilateral pes planus disorder. 38 C.F.R. § 4.21; Dyess v. Derwinski, 1 Vet. App. 448, 455 (1991) (stating that the Board should consider § 4.21 when applying Diagnostic Code 5276). In the presence of painful motion with any form of arthritis, the Veteran is entitled to at least the minimum compensable rating. 38 C.F.R. § 4.59. The same is also true for painful motion in non-arthritis contexts when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). During the Veteran’s October 2012 VA examination, the Veteran indicated that he had been experiencing intermittent pain on the bottom of his feet and that it “feels like standing on pins and needles.” See, October 2012 VA examination. The Board notes that the Veteran is competent to report symptoms such as pain because it is within the knowledge and personal observations of lay witnesses. Based on the pain as described by the Veteran during his October 2012 VA examination, the Board finds that this competent evidence supports a rating of 10 percent based on the presence of pain in a non-arthritis context. However, the Board further finds the preponderance of the evidence is against a rating in excess of 10 percent. In this regard, the Board notes that with the exception of pain reported by the Veteran, the VA examiner noted that the Veteran’s flat feet were asymptomatic and without any evidence of complications. Id. The examination specifically states that there is no inward bowing of the Achilles tendon, no pain on manipulation, no indication of swelling on use, no characteristic calluses, no marked pronation, no extreme tenderness on plantar surfaces of the feet, and no inward displacement and severe spasm of the Achilles tendon on manipulation. There is also no indication that pain on manipulation or use are accentuated. The evidence as reported in the October 2012 VA examination is not contradicted by any other competent medical evidence of record. Accordingly, the Board while the Board finds that an initial rating of 10 percent is warranted, the preponderance of the evidence is against a rating in excess of 10 percent. REASONS FOR REMAND While the Board sincerely regrets the delay, additional develop is required before the Veteran’s remaining claims may be adjudicated on the merits. 1. Entitlement to service connection for degenerative arthritis of the lumbosacral spine is remanded. The Veteran was afforded a VA examination in connection with his claim for service connection for degenerative arthritis of the lumbosacral spine in October 2012. However, the Board finds that the VA examination is incomplete. Specifically, the Board notes that the October 2012 VA examiner confirmed that the Veteran has a current diagnosis of degenerative arthritis of the lumbosacral spine, but did not adequately address the Veteran’s documented in-service complaints of back pain, as well as the Veteran’s contention that his back pain started while he was serving as a paratrooper on active duty and has continued since. The examiner solely based their conclusion that the Veteran’s current diagnosis was not related to his active duty service because he did not receive treatment for a back disability for many years following his discharge. Accordingly, the Board finds that a remand is warranted for a new examination in order to obtain a more thorough rationale that more fully addresses the Veteran’s contentions. Barr v. Nicholson, 21 Vet. App. 2007. 2. Entitlement to service connection for tinnitus is remanded. The Veteran was afforded a VA examination in connection with his claim for service connection for tinnitus in November 2012. However, the Board finds the examination to be incomplete. Specifically, the Veteran indicated to the examiner that he had been suffering from tinnitus “for a long time.” However, it does not appear that the examiner clarified whether or not the Veteran’s tinnitus symptoms began while he was serving on active duty. Instead, the examiner found that the Veteran’s tinnitus was less likely than not related to his active duty service because there “is no documented hearing loss or threshold shift at the time of military discharge; there is no documented or reported noise related event associated with tinnitus onset.” See, November 2012 VA audiological examination. However, the Board does not find this opinion to be adequate. Specifically, the Board notes that the examiner improperly relied solely on the absence of documentary evidence as a rationale for the negative nexus opinion and the Board further notes that the absence of a significant threshold shift during service does not preclude service connection. Dalton v. Nicholson, 12 Vet. App. 23. Accordingly, a new examination is warranted. Barr v. Nicholson, 21 Vet. App. 303 (2007). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the Veteran’s claims file. All records/responses received must be associated with the electronic claims file. 2. Once any outstanding records have been received, the Veteran should be scheduled for VA examinations with the appropriate medical personnel to provide an etiological opinion for his degenerative arthritis of the lumbar spine and tinnitus. The entire claims file, to include a copy of this remand, should be made available to the examiner. Following a complete review of the record, the examiner is asked to provide the following opinions: a. Whether it is at least as likely as not that the Veteran’s degenerative arthritis of the lumbar spine had its onset during service or is otherwise etiologically related to his active duty service. In providing this opinion, the examiner is specifically asked to address the Veteran’s contention that his back pain began while he was serving as paratrooper while serving on active duty and that his back pain has continued since. b. Whether it is at least as likely as not that the Veteran’s tinnitus had its onset during service or is otherwise etiologically related to his active duty service. A complete rationale must be provided for all findings and conclusions reached. The examiner should discuss any lay statements made by the Veteran with respect to the etiology of his claimed disabilities. If the examiner must resort to speculation for any of the requested opinions, an explanation as to why this is so is required. If the examiner determines that an opinion cannot be provided without resort to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted regarding the etiology of any diagnosed disorder or whether additional testing or information could be obtained that would lead to a conclusive opinion. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Daugherty, Associate Counsel