Citation Nr: 1815288 Decision Date: 03/15/18 Archive Date: 03/23/18 DOCKET NO. 14-15 728A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for a bilateral ear disability, claimed as bilateral otitis media. 3. Entitlement to service connection for a depressive disorder. 4. Entitlement to service connection for bilateral ingrown toenail. 5. Entitlement to service connection for Morton's metatarsalgia, interdigital neuroma within second and third toes, left foot. 6. Entitlement to an initial compensable rating for migraine headaches. 7. Entitlement to an increased initial rating for jaw residuals involving the 5th cranial nerve, right, currently rated as 10 percent disabling. 8. Entitlement to an increased initial rating for jaw residuals involving the 5th cranial nerve, left, currently rated as 10 percent disabling. 9. Entitlement to an increased rating for gastroesophageal reflux disease (GERD), currently rated as 10 percent disabling. 10. Entitlement to an increased rating for chronic lumbar sprain, currently rated as 20 percent disabling. 11. Entitlement to an initial compensable rating residuals of left ring finger fracture. 12. Entitlement to an initial compensable rating for residual scar of the left thigh. 13. Entitlement to an increased rating for a cervical spine sprain, rated as 20 percent disabling. 14. Entitlement to a compensable rating for tonsillectomy residuals. 15. Entitlement to a compensable rating for hemorrhoid disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Fagan, Counsel INTRODUCTION The Veteran served on active duty from January 1999 to March 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Pittsburgh, Pennsylvania RO maintains jurisdiction over this appeal. As a preliminary matter, the Board observes that, while the RO acknowledged receipt of a May 2014 NOD with the issues of entitlement to increased ratings for tonsillectomy, cervical spine, and hemorrhoid disabilities, it has not yet issued a statement of the case (SOC) addressing those issues. Thus, out of an abundance of caution, the Board is taking jurisdiction of those issues for the limited purpose of remanding them for issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999). The title page has been updated accordingly. The issues of entitlement to service connection for psychiatric and left foot disabilities, and increased ratings for migraine, lumbar spine, cervical spine, tonsillectomy, and hemorrhoid disabilities, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). VETERAN'S CONTENTIONS A. Service Connection Claims The Veteran contends that he began to experience tinnitus in service around 2001 or 2003, with symptoms beginning slowly and progressively over a period of several years. He reported that there was no definitive date of onset. He also contends that he has bilateral ear symptoms of dizziness, unsteadiness, difficulty balancing, ear pain, and a sensation of needing to clear the ears, that are related to otitis media diagnosed in service. Finally, the Veteran contends that his current ingrown toenail disability first manifested in service. B. Increased Rating Claims The Veteran contends that he is entitled to a separate 30 percent rating for impairment of the fifth cranial nerve on each the left and right side due to symptoms of pain, drooling, impairment in chewing, and loss of sensation. He also contends that a higher rating for GERD is warranted due to daily symptoms of heartburn, regurgitation, a "sour stomach," and pain in the lower gut, as well as fluctuating symptoms of constipation and diarrhea, and fecal leakage. He further seeks a 10 percent rating for the residuals of his left ring finger fracture due to joint and fingertip pain, particularly with physical activity. Finally, he contends that a rating of at least 10 percent is warranted for his left thigh scar because it was incurred during military service. He also reported leg pain, but indicated he was not sure what it was connected to. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for establishing service connection for bilateral Eustachian tube dysfunction are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria for establishing service connection for bilateral ingrown great toenail disability are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 4. The criteria for a rating in excess of 10 percent jaw residuals involving the fifth cranial nerve, right side, are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.124a, Diagnostic Code 8205 (2017). 5. The criteria for a rating in excess of 10 percent jaw residuals involving the fifth cranial nerve, left side, are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.124a, Diagnostic Code 8205 (2017). 6. The criteria for an initial disability rating in excess of 10 percent for GERD are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.114, Diagnostic Code 7399-7346 (2017). 7. The criteria for a rating of 10 percent, but no higher, for residuals of a left ring finger fracture have been met. 38 U.S.C. §§ 1155, 5107 (LexisNexis 2017); 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003 (2017). 8. The criteria for a compensable rating for a left thigh scar have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802 (2008, 2017), Diagnostic 7803 (2008), 7805 (2008, 2017). REASONS AND BASES FOR BOARD CONCLUSIONS A. 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; 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 condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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). Bilateral Ear Disabilities The record reflects a current diagnosis of Eustachian tube dysfunction based on the Veteran's bilateral ear complaints, as well as a diagnosis of tinnitus, as indicated on an August 2008 VA contract examination report and addendum. The record also supports in service incurrence of ear disabilities. For example, STRs show that in January 2005 the Veteran was treated for left ear pain and a possible infection in the ear canal, and in March he complained of ear aches, right worse than left. In October 2006, he again complained of bilateral ear pain and was diagnosed with otitis media acute serious in the right ear. Regarding tinnitus, though STRs are silent for complaints of tinnitus, when a condition may be diagnosed by its unique and readily identifiable features, as is the case with tinnitus, the presence of the disorder is not a determination "medical in nature," and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 305 (2007); Charles v. Principi, 16 Vet. App. 370 (2002). Thus, the Board finds the Veteran's lay statements sufficient to establish in-service incurrence of tinnitus. Therefore, the remaining inquiry is whether the Veteran's current bilateral symptoms and tinnitus are related to service. Regarding nexus, an August 2008 VA contract examiner determined that, while the Veteran did not have otitis media, his history of dizziness was consistent with otologic pathology and his ear discomfort was attributable to Eustachian tube dysfunction. The examiner did not offer an opinion on the etiology of the Eustachian tube dysfunction. However, he did opine that the Veteran's tinnitus is at least as likely as not related to service. With regard to both the symptoms of dizziness and ear discomfort consistent with Eustachian tube dysfunction, and tinnitus, when a claim involves a diagnosis based on purely subjective complaints, the Board is within its province to weigh the Veteran's testimony and determine whether it supports a finding of service incurrence and continued symptoms since service. See Barr, 21 Vet. App. at 305. If it does, such testimony is sufficient to establish service connection. Id. Here, the Board finds the Veteran's reports of the in-service onset of his bilateral ear symptoms of ear pain, dizziness, and tinnitus, and their continuation thereafter both competent and credible. Further, the Veteran's statements also amount to evidence of continuity of symptomatology which would warrant consideration of 38 C.F.R. § 3.303(b), as well as the presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309(a) with respect to tinnitus. In so finding, the Board is cognizant of the STR showing a complaint of tinnitus in November 1998, prior to service. However, as pointed out by the Veteran, that STR relates to a different Veteran. Here, no tinnitus disability was found or reported during the November 1998 entrance examination or on a January 1999 recruit screening examination, and there is no other evidence to suggest that a tinnitus disability preexisted service. The Board also recognizes that the Veteran affirmatively denied ringing in the ears in September 2005 and March 2006. However, the Board finds those reports are not entirely reliable as the Veteran also denied symptoms of other disability clearly documented in the record, including asthma. In any event, affording the Veteran the benefit of the doubt, in light of the evidence of record, including the Veteran's competent reports of bilateral ear symptoms consistent with Eustachian tube dysfunction and tinnitus that have continued since service, and given evidence of a diagnosis of each of those conditions just months after separation, the Board finds that the evidence is at least in equipoise regarding whether the Veteran's current Eustachian tube dysfunction and tinnitus were incurred in service. See Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). Accordingly, resolving all doubt in his favor, service connection is warranted for bilateral Eustachian tube dysfunction and tinnitus. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). Ingrown Toenails The Veteran has a current bilateral ingrown toenail disability, as diagnosed by VA contract examiners in August 2008 and December 2013. Additionally, STRs document treatment in service for an ingrown left great toenail in April 2007. The Veteran has also provided competent lay testimony that he had recurring ingrown toenails of both the left and right toes in service. See Layno v. Brown, 6 Vet. App. 465 (1994). Therefore, the remaining inquiry is whether the Veteran's current ingrown toenail disability is related to service. While not an outright nexus opinion, the December 2013 examiner noted that the Veteran's "very slight ingrowth" of the nails of the great toes was made worse by the wearing of boots during active duty, suggesting an association between the current disability and service. Further, as discussed, when a claim involves a diagnosis based on purely subjective complaints, the Board is within its province to weigh the Veteran's testimony and determine whether it supports a finding of service incurrence and continued symptoms since service. See Barr, 21 Vet. App. at 305. If it does, such testimony is sufficient to establish service connection. Id. Here, the Board finds the Veteran's reports of the in-service onset of his chronic bilateral ingrown toenail disability and its continuation thereafter both competent and credible, as his statements consistent with STRs and post service examinations showing ingrown toenails of the great toes. Further, the Veteran's statements amount to evidence of continuity of symptomatology which would warrant consideration of 38 C.F.R. § 3.303(b). Accordingly, resolving all doubt in the Veteran's favor, service connection is warranted for bilateral ingrown great toenail disability. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). B. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for 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. When two evaluations are potentially applicable, VA will assign the higher evaluation when the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. VA will resolve reasonable doubt as to the degree of disability in favor of the Veteran. 38 C.F.R. § 4.1. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an award of service connection for that disability, separate, or "staged," ratings can be assigned for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Jaw Residuals Involving the Fifth Cranial Nerve The Veteran's service-connected post-surgical jaw residuals involving neuralgia of the cranial nerve on the right and left sides, are evaluated as 10 percent disabling for each side pursuant to Diagnostic Code 8405, for neuralgia of the fifth (trigeminal) cranial nerve. Under that diagnostic code, a higher 30 percent rating is warranted for severe incomplete paralysis. A 50 percent rating is warranted for complete paralysis. Further, a Note following the Code states that the rating is dependent upon the relative degree of sensory manifestation or motor loss. 38 C.F.R. § 4.124a. The terms "mild," "moderate," and "severe" are not defined in the 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. The use of terminology such as "moderate" or "severe" by VA examiners and others, 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 C.F.R. §§ 4.2, 4.6. The Board does note, for reference and illustrative purposes, that the definitions for "mild" includes not very severe. WEBSTER'S II NEW COLLEGE DICTIONARY at 694 (1995). In addition, a synonym for "mild" is "slight" and definitions for "slight" includes small in size, degree, or amount. Id at 1038. The definitions for "moderate" includes of average or medium quantity, quality, or extent. Id. at 704. Finally, definitions for "severe" includes extremely intense. Id. at 1012. In this case, the Veteran was afforded VA examinations in August 2008 and December 2013 to address his jaw/facial complaints. The associated reports of examination show that, in August 2008, the Veteran reported pain in the sides of his lower jaw, and no sensation in his lower lip. The examiner noted in an October 2008 addendum that the Veteran's symptoms involved the fifth cranial nerve, and that range of jaw motion was normal for the Veteran. In December 2013, the Veteran reported pain and numbness, and also reported weakness in the muscles controlling the lips leading to drooling and loss of food while chewing. He also reported that he occasionally injured his lips while chewing and was unaware when he would bite his lip. While the August 2008 examiner did not indicate severity, the December 2013 examiner found that both the right and left sides were manifested by moderate incomplete paralysis due to symptoms of moderate numbness, mild difficulty chewing, mild difficulty swallowing , mild motor strength impairment, and decreased sensation in the lower face. Although the Board is not bound by the VA examiner's description, it is competent medical evidence that must be taken into consideration. Indeed, it is the only competent medical evidence directly addressing the severity of the Veteran's post-surgical jaw residuals, and it is consistent with the currently-assigned 10 percent ratings for moderate incomplete paralysis. The Board finds that the reported symptomatology at the December 2013 examination does not more nearly approximate severe disability, as many symptoms were noted as being of a mild nature, with moderate numbness and impairment of motor strength. Moreover, sensory evaluation was decreased at the lower face bilaterally, but not absent. Further, no impairment was noted at the mid face or upper face and forehead. Even considering the Veteran's functional complaints related to chewing, drooling, and occasional lip biting, the examiner found the overall disability to be of moderate severity. Given the foregoing findings of mild to moderate symptoms, the Board finds that severe incomplete paralysis is not more nearly approximated. Moreover, the Board finds that the examiner's finding of moderate disability is consistent with the other evidence of record. In this regard, clinical evidence is generally silent for any complaints or findings related to the Veteran's jaw or certainly any findings suggestive of severe incomplete paralysis. The Veteran did not complain of any jaw symptoms when establishing care at VA in October 2008, and ongoing treatment notes thereafter generally show normal cranial nerves on examination and/or do not otherwise document neurological symptoms or findings supportive of severe incomplete paralysis. The Board finds no other competent and credible evidence of record, to include the medical treatment records, to support a finding of severe incomplete paralysis. To the extent that the Veteran contends his post-surgical jaw residuals are more severe than as contemplated by his current ratings, his subjective reports are less probative than those objective findings on examination and during treatment. Moreover, for reasons discussed in further detail below, the Board finds that the Veteran's subjective reports as detailed in his written statements and his daily symptom journal to be generally unreliable. In sum, the Board finds that neither the right nor left side is manifested by severe incomplete paralysis of the fifth cranial nerve. The Board finds that the Veteran is not entitled to a rating in excess of 10 percent for his service-connected neuralgia of the fifth cranial nerve of the right and/or left sides, to include as a "staged" rating(s) pursuant to Fenderson, supra, and Hart, supra. GERD The Veteran is in receipt of a 10 percent disability rating for his service-connected GERD by analogy under 38 C.F.R. §§ 4.20, 4.114, Diagnostic Code 7346 (hernia hiatal) 38 C.F.R. § 4.20 (2017). He contends that a higher rating is warranted due to daily symptoms of heartburn, regurgitation, a "sour stomach," and pain in the lower gut, as well as fluctuating symptoms of constipation and diarrhea, and fecal leakage. Parenthetically, the Board observes that service connection for IBS was denied in an October 2015 rating decision. In any event, in order to warrant a higher 30 percent rating, the evidence must show persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal, arm, or shoulder pain, which is productive of considerable impairment of health. 38 C.F.R. § 4.114. After a review of the record, the Board finds that while the evidence of record shows the Veteran to be symptomatic with respect to GERD, it does not show that the symptoms are productive of considerable impairment of health to warrant a higher 30 percent rating. In this regard, the Veteran reported to an August 2008 VA contract examiner that he had difficulty swallowing, pain above the stomach, and passed black-colored blood in stool, along with symptoms of nausea, vomiting, heartburn, pain behind the breastbone, reflux, and regurgitation. However, he also stated that he had gained 20 pounds in the last eight months and the examiner found no evidence of malnutrition. It was also noted that an upper GI series was normal. Similarly, ongoing post-service treatment records show the Veteran to be taking medication for symptoms, but do not otherwise support symptoms of such severity as to result in "considerable impairment of health." In this regard, the Veteran was routinely observed to be well-developed, well-nourished, or healthy in appearance, and he generally maintained a stable weight. He also reported his health as fair, very good, or excellent. Notably, even at such times as health was reported only as fair, such as in November 2014, he did not attribute any impairment in health to GERD. He also reported that he moderately exercised most days of the week, suggesting good health, and did not otherwise report functional impairment or missed work due to GERD symptoms, as he did for other conditions such as his back. While he did routinely report GERD in reporting his medical history, he did not actively report or seek treatment for symptoms other than to request a refill of medication in November 2014 and April 2015. Interestingly, in April 2015, he was advised that the Zantac he had been taking becomes ineffective after a short period of treatment, and it was recommended that the Veteran switch to a proton pump inhibitor; however, the Veteran declined a PPI and insisted on Zantac. The Board observes further that during treatment, the Veteran, in fact, routinely denied gastrointestinal symptoms on review of systems, including nausea, vomiting, abdominal pain, diarrhea, and constipation, including in October 2008, and more recently in October 2014, November 2014, and April 2015. While he did report nausea in October 2008, it was reported in connection with migraines. The Board also finds it noteworthy that at such times when he did report a symptom that he elsewhere has attributed to GERD, the symptom was reported as a new onset in connection with medication. For example, in October 2014, it was noted that the Veteran "developed reflux" after taking steroids, and in April 2015, he reported that a medication he was taking for back pain caused nausea. The nature of those reports suggests a new onset of symptoms that were not present prior to the medication, or at least not to the degree the Veteran has asserted in support of his appeal. Physical examination of the abdomen was also routinely within normal limits. Also probative are the STRs, including those dated proximate to the appeal period, which generally show that the Veteran maintained a stable weight and note that at the time of his November 2007 separation examination, he had good control of his GERD symptoms. Also noteworthy are the Veteran's February 2007 characterization of his reflux as "mild" and his denial of symptoms of nausea, vomiting, and pain at that time, with or without food. He similarly denied nausea and vomiting in May 2007, and examination of the abdomen was normal in September 2007. The Board has considered the Veteran's lay reports of symptoms as detailed in a May 2014 statement along with a daily journal of symptoms. However, for reasons discussed further below, the Board finds that the objective medical evidence of record to be more probative than the Veteran's lay reports offered in support of his appeals. And, the objective probative evidence shows that, while the Veteran has been symptomatic, his GERD, has not been productive of more than mild impairment, and does not more nearly approximate considerable impairment in health to warrant a higher 30 percent rating. Thus, a rating in excess of 10 percent for GERD is denied. Left Ring Finger The Veteran seeks a compensable rating for his left ring finger fracture residuals. Specifically, in a May 2014 statement, he requested a 10 percent rating. Following a review of the record, the Board finds that a 10 percent rating is warranted. The Veteran's left ring finger disability is currently rated under the criteria of 38 C.F.R. § 4.71a, Diagnostic Code 5230. A compensable rating for limitation of motion cannot be assigned under this Diagnostic Code, and, consequently, a rating based on painful motion cannot be assigned. See Sowers v. McDonald, 27 Vet. App. 472, 479-80 (2016) (holding that where the applicable diagnostic code does not provide for a compensable rating, 38 C.F.R. § 4.59 does not apply, and may not be used to assign a compensable rating). Nevertheless, the Board finds that a compensable rating is warranted under Diagnostic Code 5003. While imaging of the left hand in August 2008 showed well-maintained joint spaces, it also showed an unusually broad posterior proximal margin at the distal phalanx of the left ring finger related to the old, healed avulsion fracture, as well as soft tissue prominence. During the October 2008 examination, the Veteran also reported pain in his left finger, and exhibited slightly reduced strength in the left hand. While the August 2008 imaging did not show arthritis per se, the Board finds that the objective abnormalities found on imaging, combined with the Veteran's competent reports of pain and the objective evidence of reduced strength during examination, are sufficient to warrant the Veteran's requested 10 percent rating for his left ring finger disability. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991) (holding that painful motion of a major joint or group of minor joints caused by degenerative arthritis is deemed to be limited motion such that a minimum compensable rating is warranted under 5003 even though there is no actual limitation of motion); Petitti v. McDonald, 27 Vet. App. 415, 428 (2015) (finding that objective confirmation of the Veteran's joint pain is required to assign a compensable rating); Spicer v. Shinseki, 752 F.3d 1367, 1371 (Fed. Cir. 2014) (holding that a 10 percent rating under Diagnostic Code 5003 is warranted for a group of minor joints where there is limitation of motion in more than one joint in the group). The Board finds that a 10 percent rating under this Diagnostic Code is more beneficial to the Veteran than a rating under the existing Diagnostic Code, 5230, for which a compensable rating is unavailable. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (holding that the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). Finally, the Board finds that a rating based on arthritis of multiple fingers is not warranted because the Veteran is only service-connected for a disability of one finger, the left ring finger. Left Thigh Scar The Veteran's left thigh scar is currently rated as noncompensable under the criteria of 38 C.F.R. § 4.118, Diagnostic Code 7802. The Board notes that the regulations pertaining to rating skin disabilities were revised effective October 23, 2008. Those revised provisions are applicable only to claims received on or after October 23, 2008. As the Veteran's claim was received prior to that date, these revisions do not apply in this case and the Veteran has not requested review under the revised regulations. See 73 Fed. Reg. 54708 (Sept. 23. 2008). Although the revised regulations are inapplicable, it is apparent that the AOJ analyzed the disability under both the criteria in effect prior to and as of October 23, 2008. As such, the Board also has evaluated the Veteran's claim under the former and revised rating criteria for evaluating skin disabilities. See Percy v. Shinseki, 23 Vet. App. (2009). Here, during an August 2008 VA contract examination, the Veteran reported a history of an abscess on the left thigh related to a spider bite that was drained in service in 2003. In contrast to his history related to other conditions, he did not report any associated symptoms, including pain. On examination, the examiner observed a 2 x 1 centimeter scar over the posterior aspect of the left thigh. The scar was leveled, and there was no tenderness, disfigurement, ulceration, adherence, instability, inflammation, edema, tissue loss, keloid formation, or hypo- or hyper-pigmentation related to the scar. Parenthetically, while the examiner initially noted on the examination report that the scar was located on the right thigh, he clarified in an addendum that it was the left thigh. Post-service clinical records and even STRs dated proximate to the appeal period, do not note any additional symptomatology related to the left thigh scar. Based on the foregoing, the Board finds that a compensable rating is not warranted under either the rating criteria in effect prior to October 23, 2008, or the revised criteria, at any time during the period on appeal. In this regard, a higher 10 percent rating is not warranted under the old rating criteria because the Veteran's scar has not been found to be painful or tender; to be deep or cause limited motion in an area exceeding 39 square centimeters; to be unstable (involving frequent loss of covering of the skin over the scar); to otherwise exceed an area of 929 square centimeters; or to otherwise limit the function of the left thigh. 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (2008). Similarly, a higher 10 percent rating is not warranted under the revised criteria as the evidence does not show the left thigh scar to be unstable or painful; to be deep and nonlinear covering an area of at least 39 square centimeters; to be superficial and nonlinear in an area exceeding 929 square centimeters; or, to have any other disabling effects. 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805 (2017). To the extent that the Veteran generally reported leg pain in a May 2014 statement, he acknowledged that he did not know what the pain was connected to, and there is nothing to support that any such pain is related to his left thigh scar. Indeed, the record shows the Veteran has various lower extremity complaints, including knee pain and radiculopathy symptoms, and he has not been shown to have medical training to diagnose the etiology of any leg pain. The Board concludes that the medical findings on objective examinations are of greater probative value than the lay allegations regarding the nature and severity of his left thigh scar. In summary, the Board finds that an initial compensable rating is not warranted for the Veteran's left thigh scar at any time during the appeal period. Lay Evidence The Board has considered the Veteran's subjective reports of symptoms as recorded in written statements and a daily journal of symptoms, including those related to his jaw residuals, GERD, and his left hand/finger. However, the Board finds his reports as recorded in the journal to be of limited probative value and insufficient to support entitlement to higher ratings. Foremost, the symptoms he reported as occurring daily or frequently during the period in which there are no corresponding medical records, including nausea, abdominal pain, vomiting, and diarrhea, are elsewhere expressly denied during treatment, both prior to and after the period detailed in the journal. Even at such times as the Veteran was seeking medications for GERD, he did not report such symptoms as detailed in his daily journal. In fact, he denied such symptoms, and was otherwise found to have normal bowel sounds or normal abdominal examination. Indeed, even at such time as he reported current GERD symptoms during the August 2008 VA contract examination, an upper GI barium swallow was entirely normal. Similarly, the Board observes that in his daily journal of symptoms, the Veteran recorded that, on December 14, 2013, he experienced diarrhea during the day with 7 bowel movements for which he was barely able to make it to the rest room to take care of, along with fecal leakage and a flare of his hemorrhoid disability involving irritation, blood, mucous discharge, and itchiness. However, during a VA contract examination for hemorrhoids of the same date, physical examination was of the rectal/anal area was normal, and despite prompting for symptoms of fecal leakage and itching, the examination report is negative for those symptoms. Even where the examiner noted the Veteran's subjective history, there was no mention of a flare up that day, of leakage or itching, and while there was a report of occasional mucous, there was no indication of any occurring that date. Similarly, during examination of his lumbar spine disability the same date, the Veteran denial fecal incontinence. Also noteworthy is that the Veteran apparently had four different VA examinations on that date, none of which suggests the Veteran had gastrointestinal problems that date requiring him to frequently or urgently use the bathroom, or is otherwise reflective of the condition the Veteran presented in his daily journal. For example, while the Veteran recorded in his daily journal that on December 14, 2013, he had a stiff neck and back "all day long" with most pain starting in the lower back and "also affecting pain in legs, feet, and buttocks," the Board notes that during the lumbar spine contract examination of the same date it was noted that, while the Veteran did report a history of occasional radiation to the buttocks, during the examination, "THE VETERAN DENIED ANY RADIATING PAIN INTO EITHER LOWER EXTREMITY." Moreover, while the Veteran has reported that he did not seek treatment during that period because he could not take off from work, the Board notes that the Veteran reported in his daily journal of symptoms that he did variously take days off from work, but then inexplicably, did not seek treatment for any of his symptoms. The Board also notes that the reliability of the Veteran's reporting of other symptoms has been called into question by providers. For example, in April 2015, concerning his back symptoms, a provider observed that the Veteran claimed to remain active at home, but was laying "prostrate on my exam table as if he requires support for bathing and dressing at home." In March 2015 and April 2015, it was also noted that the Veteran's pain and/or symptoms were more than would be expected or did not correlate with imaging. Similarly, in October 2014, it was observed that the Veteran would barely hold his legs and arms up when resistance was applied, "BUT AMBULATING in the room and in the clinic without complication or assistance" and was "able to climb up and down from exam table with no difficulty." Indeed, the Board observes that despite his accounts of frequent diarrhea, up to 7 or 9 bowels movements a day, regurgitation, and other GI symptoms, the record shows that the Veteran maintained and even put on weight. In this regard, in October 2008, he was noted to be 207.5 pounds. However, in 2014 and 2015, he was noted to be 210 pounds. Given the foregoing, the Board finds the Veteran's subjective reports generally not reliable or probative, and the Board concludes that the medical findings on objective examinations are of greater probative value than the Veteran's lay allegations regarding the nature and severity of his disabilities. 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 Veteran's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. ORDER Service connection for tinnitus is granted. Service connection for a bilateral ear disability diagnosed as Eustachian tube dysfunction is granted. Service connection for a bilateral great toe ingrown toenail disability is granted. An initial rating in excess of 10 percent for jaw residuals involving neuralgia of the fifth trigeminal cranial nerve, right side, is denied. An initial rating in excess of 10 percent for jaw residuals involving neuralgia of the fifth trigeminal cranial nerve, left side, is denied. A rating in excess of 10 percent for GERD is denied. A rating of 10 percent, but no higher, for residuals of a left ring finger fracture is granted. A compensable rating for a left thigh scar is denied. REMAND The Board finds that remand is necessary for further development of the Veteran's remaining service connection and increased rating claims. Concerning the Veteran's migraine and lumbar spine disabilities, the Board finds that new examinations are necessary. The Veteran's migraines were last evaluated in August 2008, and in a May 2014 statement, he reported that his migraine disability had worsened. Ongoing evidence also suggests that the Veteran's lumbar spine disability may have worsened since it was last evaluated in December 2013. In this regard, the record shows that the Veteran sustained a lifting injury to his back in October 2014, which exacerbated his back symptoms and after which he was consulted for possible surgery. Given the foregoing, the Board finds that new examinations are necessary. Concerning the Veteran's claimed left foot Morton's neuroma/metatarsalgia, the Board finds that a new examination is necessary to determine whether any current disability exists. In this regard, while the Veteran was afforded a VA contract examination in August 2008 and left foot metatarsalgia was diagnosed, the objective findings as recorded on the examination report were not consistent with the diagnoses. Indeed, imaging of the left foot was normal and while the examiner noted findings specific to the right foot regarding Morton's metatarsalgia or interdigital neuroma between the second and third metatarsals, no such findings were noted with regard to the left foot. Interestingly, the Board notes that in April 2007 in service, the Veteran complained of left foot pain over the 2nd and 3rd metatarsals, which is precisely where the right foot findings were noted by the August 2008 examiner. In any event, clarification was requested in an addendum, and the examiner's response related to the right foot. Then in an October 2008 email, it was noted that the examiner indicated that there were no findings of metatarsalgia related to the left foot. Given the conflicting evidence as to whether a current left foot disability exists, the Board finds that a new examination is necessary. Regarding the claim of entitlement to service connection for an acquired psychiatric disorder, the Veteran's STRs reflect that he sought treatment in 2002 and 2005 for symptoms of depression. Of note, in November 2002, he reported a 10 year history of depressive symptoms as well as having considered suicide multiple several times in the past, most recently four years prior. However, a psychiatric condition was not noted on his November 1998 entrance examination. The Board notes that, in such circumstances, a Veteran is presumed to have been sound upon entry, and the burden falls on the Government to rebut the presumption of soundness by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. 38 U.S.C. §§ 1111, 1137 (2012); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The record shows that the Veteran was scheduled for a VA examination to address his psychiatric claim in February 2014. However, he failed to appear for the examination. Nevertheless, the Board finds that there is currently insufficient medical evidence to adjudicate the Veteran's claim. As a result, the Board finds that the Veteran should be provided one last opportunity to appear for a VA examination that addresses the onset and etiology of his current psychiatric disorders. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). He is advised, however, that failure to appear could result in the denial of his claim. The Board has taken jurisdiction over the issues of entitlement to increased ratings for tonsillectomy, cervical spine, and hemorrhoid disabilities for the limited purpose of ordering corrective action pursuant to 38 C.F.R. § 19.9(c) (2017) (codifying Manlincon, 12 Vet. App. 238). In this regard, in May 2014, the Veteran filed a timely NOD with the ratings assigned following the grants of service connection for tonsillectomy, cervical spine, and hemorrhoid disabilities in August 2013 and March 2014 rating decisions. While the RO acknowledged receipt of the NOD as to those issues in August 2014 correspondence, it has yet to issue an SOC. As a result, remand of the issues of entitlement to increased ratings for tonsillectomy, cervical spine, and hemorrhoid disabilities for issuance of an SOC is required. See Manlincon, 12 Vet. App. at 239-41. The Veteran will then have the opportunity to perfect an appeal as to those issues if he so chooses. On remand, updated treatment records should be obtained. 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Issue an SOC addressing the issues of entitlement to increased ratings for tonsillectomy, cervical spine, and hemorrhoid disabilities. The Veteran is hereby notified that, following the receipt of the SOC concerning those issues, a timely substantive appeal must be filed if appellate review by the Board is desired. If, and only if, a timely substantive appeal is filed, the issues should be returned to the Board for appellate review. 2. Ask the Veteran to identify any medical providers, VA or private, who have recently treated him for his back, migraine, left foot, or psychiatric disabilities. If VA treatment is identified, obtain any such records. If private providers are identified, request that the Veteran complete a release form for those providers and request such records. If any requested records are unavailable, the claims file should be annotated as such and the Veteran and his representative notified of such. 3. After the development requested in items 1 and 2 has been completed to the extent possible, schedule the Veteran for a VA examination to determine the current severity of his lumbar spine disability. The claims file should be made available for review, and the examination report should reflect that such review occurred. Range of motion should be reported, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in functional loss. The examiner should also test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe all symptomatology, including neurological residuals, associated with the Veteran's chronic lumbar sprain. In addition to objective test results, the examiner should fully describe the functional effects caused by the Veteran's lumbar sprain, including the effect of his migraines on his occupational and daily functioning. 4. Schedule the Veteran for a VA examination to address the current nature and severity of his migraines. The electronic claims file should be reviewed by the examiner. All appropriate tests and studies should be conducted, and the results reported in detail. In addition to objective test results, the examiner should fully describe the functional effects caused by the Veteran's migraines, including the effect of his migraines on his occupational and daily functioning. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of his left foot disability. The entire claims file must be reviewed in conjunction with the examination report. The examiner is asked to diagnose any left foot disability found. For each diagnosed disability, the examiner should answer whether it is at least as likely as not (a 50 percent or greater probability) that it was incurred in or is otherwise related to the Veteran's active military service. A complete rationale must be provided for all opinions. The rationale should discuss the pertinent evidence of record, to include the April 2007 treatment for left foot symptoms in service. 6. Schedule the Veteran for a VA examination with a psychologist or psychiatrist to determine the nature and etiology of any diagnosed psychiatric disability. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. Following review of the claims file and examination of the Veteran, the examiner should respond to the following: (a) Please identify all current psychiatric disorders, to include acquired psychiatric disorders and any personality disorders. In doing so, please specifically discuss the psychiatric diagnoses of record, including but not limited a depressive disorder. For any diagnoses of record that cannot be validated or confirmed, please explain why such diagnoses cannot be confirmed. In determining whether the Veteran meets the criteria for a specific psychiatric diagnosis, please consider medical and lay evidence dated both prior to and since the filing of the claim for service connection in March 2008. Please note that although the Veteran may not meet the criteria for a certain diagnosis at the present time, diagnoses made prior to and since the date of claim filing meet the criteria for a "current" diagnosis. For any diagnoses of record which cannot be validated or confirmed, please explain why such diagnoses cannot be confirmed. (b) For each diagnosed acquired psychiatric disorder, did the disorder clearly and unmistakably (i.e., obviously, manifestly, or undebatably) preexist the Veteran's period of active service? Please explain why or why not, addressing the Veteran's 2002 reports of a 10 year history of depressive symptoms and his thoughts of suicide prior to service. If you determine that any acquired psychiatric disorder clearly and unmistakably preexisted service, does the evidence clearly and unmistakably (i.e., obviously, manifestly, or undebatably) show that the preexisting condition did not undergo an increase in the underlying pathology, i.e., an aggravation, during service, or that any increase in disability was due to the natural progression of the disease? Please explain why or why not. (c) For any diagnosed acquired psychiatric disorder that did not clearly and unmistakably preexist service, is it at least as likely as not (50 percent probability or more) that the disorder had its onset in service or is otherwise related to service? Please explain why or why not. Please note that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion. A complete rationale for the opinions rendered must be provided. If you cannot provide the requested opinions without resorting to speculation, please expressly indicate this and provide a supporting rationale as to why that is so. 7. After completing the requested actions, and any additional action deemed warranted, readjudicate the claim on appeal. If the benefit sought on appeal remains denied, provide a supplemental statement of the case to the appellant and her representative and afford them an opportunity to respond. Then, return the case to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ S. C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs