Citation Nr: 0604237 Decision Date: 02/14/06 Archive Date: 02/22/06 DOCKET NO. 99-00 405A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Evaluation of degenerative disc/joint disease of the lumbar spine, currently rated as 10 percent disabling. 2. Evaluation of bronchial asthma, currently rated 10 percent disabling. 3. Evaluation of Hepatitis C, currently rated as 10 percent disabling. 4. Evaluation of gastroesophageal reflux disease, currently rated as noncompensable. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. L. Wright, Counsel INTRODUCTION The veteran had active service from June 1978 to November 1996. This appeal comes before the Board of Veterans' Apeals (Board) from a September 1998 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. In this decision, the RO granted service connection for degenerative disc/joint disease of the lumbar spine, bronchial asthma, Hepatitis C, and gastroesophageal reflux disease (GERD). The veteran's lumbar spine disability and Hepatitis C were both initially rated as 10 percent disabling. His bronchial asthma and GERD were each found to be noncompensable. The veteran appealed these initial evaluations. By rating decision of September 2005, the RO granted an increased evaluation for bronchial asthma to 10 percent disabling. The veteran continued his appeal. This case was remanded by the Board in June 2000, February 2002, May 2003, and September 2004. It has now returned for appellate consideration. FINDINGS OF FACT 1. Sufficient evidence has been obtained for an equitable determination of the issues decided below. 2. The veteran's degenerative disc/joint disease of the lumbar spine is characterized by constant pain and slight limitation of motion (even during symptomatic flare-up) without evidence of other orthopedic or neurologic involvement. 3. The veteran's Hepatitis C is currently active and is manifested by moderate liver damage and recurrent episodes of fatigue and gastrointestinal disturbances. 4. The veteran's GERD is characterized by recurrent epigastric distress with dysphagia and substernal pain, but not productive of considerable impairment of his health. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 10 percent for degenerative disc/joint disease of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.10, 4.14, 4.20, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5292-5293 (effective prior to September 26, 2003), Diagnostic Code 5237 (effective on September 26, 2003). See 68 Fed. Reg. 51454-58 (August 27, 2003), 69 Fed. Reg. 32,449-50 (June 10, 2004). 2. The criteria for an initial evaluation of 30 percent, but not more, for Hepatitis C have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(a) (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.159, 4.114, Diagnostic Code 7345 (effective prior to and after July 2, 2001). See 66 Fed. Reg. 29486 (2001). 3. The criteria for an initial evaluation of 10 percent, but not more, for GERD have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(a) (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.159, 4.114, Diagnostic Code 7346 (effective prior to and after July 2, 2001). See 66 Fed. Reg. 29486 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) introduced several fundamental changes into the VA adjudication process. It eliminated the requirement under the old 38 U.S.C.A. § 5107(a) (West 1991) that a claimant must present a well- grounded claim before the duty to assist is invoked. A VCAA notice letter consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. VA satisfied this duty by means of a letter to the appellant issued in September 2004. By means of this letter, the appellant was told of the requirements to establish increased evaluations for his low back disability, hepatitis, and GERD. He was advised of his and VA's respective duties and asked to submit information and/or evidence pertaining to the claim to VA. The Statement of the Case (SOC) issued in December 1998, and Supplemental Statements of the Case (SSOC) issued in January 2000 and September 2005, informed him of applicable law and regulations, the evidence reviewed in connection with his claim by VA, and the reasons and bases for VA's decision. The initial adverse decision in this claim was issued by the RO prior to the enactment of the VCAA. Thus, VCAA notification was issued after this adverse decision. However, this deficiency has been corrected by prior remands by the Board and subsequent readjudication of these claims by the agency of original jurisdiction (AOJ), after the issuance of the VCAA notification letter, in the SSOC issued in September 2005. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The U. S. Court of Appeals for Veterans Claims (Court) held in Mayfield v. Nicholson, 19 Vet. App. 103 (2005), that all sections of VA's notice letter should be construed in connection with each other to determine whether the document, read as a whole, addresses all aspects of the requisite notice under the provisions of the VCAA and the notice letter must be read in the context of prior relatively contemporaneous communications to the appellant from the AOJ. In addition, a complying notice need not necessarily use the exact language of the controlling statute or regulation specifying VA's notice obligations, so long as that notice properly conveys to a claimant the essence of the regulation. Id. at 124-28. Based on a review of the notification provided the appellant in this case and the above analysis, the Board finds that VA notification was in substantial compliance with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) as these documents, read as a whole, fulfilled the essential purposes of the VCAA. Id. at 130. (The appendix to the Mayfield decision contains a VA notification letter, affirmed by the Court, similar in format to the notification letters issued to the appellant in September 2004.) The Board notes that, during the pendency of this appeal, VA issued new regulations at 38 C.F.R. § 4.114 that evaluated disabilities associated with the digestive system, effective on July 2, 2001. See 66 Fed. Reg. 29486 (2001). In addition, VA issued new regulations at 38 C.F.R. § 4.71a evaluating intervertebral disc syndrome, effective September 23, 2002. 67 Fed. Reg. 54345-49 (August 22, 2002). Also, VA issued new regulations evaluating lumbosacral strain, intervertebral disc syndrome, and other spinal disabilities, effective September 26, 2003. 68 Fed. Reg. 51454-58 (August 27, 2003); see also 69 Fed. Reg. 32,449-50 (June 10, 2004). The criteria for rating intervertebral disc syndrome under Diagnostic Code 2593 that became effective on September 23, 2002, contained a note defining incapacitating episodes and chronic orthopedic and neurologic manifestations. The Federal Register version setting forth the final rule indicates that the three notes following the version of Diagnostic Code 5293 that became effective on September 23, 2002, were deleted when intervertebral disc syndrome was reclassified as Diagnostic Code 5243 in the criteria that became effective on September 26, 2003. This was apparently inadvertent and has now been corrected by 69 Fed. Reg. 32,449, 32,450 (June 10, 2004), a final correction that was made effective September 26, 2003. This correction did not substantively change the rating criteria for intervertebral disc syndrome, but instead merely corrected VA's oversight in not publishing the notes in Volume 68 of the Federal Register. In the SOC of December 1998 and the SSOC of January 2000, the veteran was informed of the old criteria evaluating Hepatitis C, GERD, and his low back disability. He was informed of the new criteria in a Board letter issued in January 2003. The AOJ had the opportunity to determine the applicability of both the old and new rating criteria to the current claim in the SSOC issued in September 2005. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); see also VAOPGPREC 7-2003 (Nov. 19, 2003). As discussed in the analysis of the decision below, no substantive changes were made to the diagnostic criteria evaluating the veteran's GERD. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claims for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). By the VCAA letter discussed above, VA requested that the veteran identify all treatment of his claimed disabilities. The veteran has identified active service, post-service military, private, and VA treatment. These records have been obtained and associated with the claims file. As discussed below, the veteran has been incarcerated in recent years. The veteran has reported receiving psychiatric treatment during this incarceration. As the current disabilities on appeal do not include a psychiatric disability, the treatment records from the veteran's incarceration are not pertinent to the current claims and do not require development by VA. Assistance shall also include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The veteran has been provided multiple VA compensation examinations in September 1997 and May 1999. These examinations noted accurate medical histories, findings on examination, and the appropriate diagnoses. The VA examiner in May 1999 clearly indicated that he had reviewed the medical history in the veteran's claims file. This examiner also provided information on functional limitations of the back during symptomatic flare-up. See 38 C.F.R. § 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995). Therefore, the VA examination reports are adequate for VA purposes. The veteran's representative has argued that the veteran should be afforded a more recent VA compensation examination. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (Incarcerated veterans are entitled to the same consideration given other veterans and assistance to incarcerated veterans must be tailored to their peculiar circumstance of confinement.) However, the veteran has not made any explicit claims that his service-connected disabilities have increased in severity since the last VA compensation examination conducted in May 1999. See Olson v. Principi, 3 Vet. App. 480, 482 (1992) (Where a veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the veteran's condition, VA must provide a new examination.) Regardless, the veteran is currently incarcerated and unable to attend any scheduled VA compensation examination. In September 2001, the veteran's representative provided the AOJ with contact information to arrange a VA compensation examination at a mental health unit to which the veteran had been placed by court order. Based on a Report of Contact (VA Form 119) dated October 2001, it appears that the AOJ attempted to arrange such an examination at the identified institution. The mental health unit informed VA that the veteran had been returned to a detention center, and it appears that the AOJ was unable to secure a VA compensation examination at this institution. The detention center informed VA in July 2003 that the veteran had been incarcerated since July 2002 due to a felony conviction. The center responded to queries of the length of the veteran's sentence and scheduled release date with "N/A." Therefore, it appears that veteran will be imprisoned for an indefinite length of time. As VA has not been able to obtain a compensation examination at the penal institution and there is no scheduled release date, further development for a new examination would be futile and needlessly delay adjudication of this case. See 38 U.S.C.A. § 5103A(a)(2), (b); 38 C.F.R. § 3.159(c)(1), (d). The veteran provided testimony before a Veterans Law Judge (VLJ) from the Board sitting at the RO in March 2000. A transcript of this hearing has been associated with the claims file. The VLJ that conducted this hearing would usually make the final decision on issues in this case. 38 U.S.C.A. § 7102(a), 7107(c). However, the VLJ that conducted the March 2000 hearing is no longer employed at the Board. The veteran was offered the opportunity to attend another hearing before a different VLJ, and he requested such a hearing in February 2002. This case was remanded in February 2002 in order to schedule a Board hearing before a traveling VLJ at the RO. The veteran was notified of a scheduled September 2002 hearing by letter issued in August 2002. However, he informed VA in August 2002 that he would be unable to attend this hearing as he was being held in a detention center without bond. This case was again remanded in May 2003 in another attempt to provide the veteran with a new hearing. He was notified of his scheduled hearing date in September 2003 by a letter issued in August 2003. The veteran failed to report for this hearing. As noted above, in July 2003 VA was informed that the veteran had been convicted of a felony offense and was to be incarcerated indefinitely. Thus, the Board concludes that further development to provide a new hearing would be futile, and adjudication of this claim is appropriate at this time. The Board remanded this case in June 2000 in order to obtain the veteran's identified post-service treatment records and to provide a more contemporaneous VA compensation examination. As noted above, due to the veteran's incarceration and VA's inability to secure a compensation examination at the identified penal institution, a more contemporaneous examination cannot be obtained. The veteran's identified VA treatment records were obtained in August and December 2000 and incorporated into the claims file. By remand of September 2004, the AOJ was instructed to provide notification of VA's duty to assist in compliance with the provisions of the VCAA. As noted above, such notification was issued by the AOJ that same month. Based on the above analysis, the Board finds that the AOJ has either fully complied with its remand instructions or there is no reasonable possibility that further development would provide the requested information and/or evidence. Therefore, the remand instructions do not require further development. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). To the extent that VA in anyway has failed to fulfill any duty to notify and assist the appellant, the Board finds that error to be harmless. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2001) (The "harmless error doctrine" is applicable when evaluating VA's compliance with the VCAA). Of course, an error is not harmless when it "reasonably affected the outcome of the case." ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998); see also Mayfield, supra. As all pertinent evidence obtainable by VA has been associated with the claims file, the Board finds that the duty to assist has been fulfilled and any error in the duty to notify would in no way change the outcome of the below decision. The notification provided to the appellant in the letter, SOC, and SSOCs discussed above provided sufficient information for a reasonable person to understand what information and evidence was needed to substantiate the claim on appeal. In this regard, while perfection is an aspiration, the failure to achieve it in the administrative process, as elsewhere in life, does not, absent injury, require a repeat performance. Miles v. M/V Mississippi Queen, 753 F.2d 1349, 1352 (5th Cir. 1985). Based on the above analysis, the Board determines that no reasonable possibility exists that further assistance would aid in the substantiation of the appellant's claim. 38 U.S.C.A. 5103A. In addition, as the appellant has been provided with the opportunity to present evidence and arguments on his behalf and availed himself of those opportunities, appellate review is appropriate at this time. See Bernard v. Brown, 4 Vet. App. 384 (1993). Applicable Criteria Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. §§ 4.1 and 4.2 (2001). Also, 38 C.F.R. § 4.10 provides that, in cases of functional impairment, evaluations must be based upon lack of usefulness of the affected part or systems, and medical examiners must furnish a full description of the effects of the disability upon the person's ordinary activity. These requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based upon a single, incomplete, or inaccurate report, and to enable VA to make a more precise evaluation of the level of the disability and of any changes in the condition. Schafrath at 594. In addition, 38 C.F.R. § 4.40 requires consideration of functional disability due to pain and weakness. As regards the joints, 38 C.F.R. § 4.45 notes that the factors of disability reside in reductions of their normal excursion of movements in different planes. The considerations include more or less movement than normal, weakened movement, excess fatigability, incoordination, impaired ability to execute skilled movements smoothly, pain on movement, swelling, and deformity or atrophy of disuse. See DeLuca at 205-07. With any form of arthritis, painful motion is an important factor of the rated disability and should be carefully noted. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or mal-aligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. 38 C.F.R. § 4.59. The evaluation of the same disability or manifestations under different diagnoses is to be avoided. 38 C.F.R. § 4.14. Rather, the veteran's disability will be rated under the diagnostic code that allows the highest possible evaluation for the clinical findings shown on objective examination. However, 38 C.F.R. § 4.14 does not prevent separate evaluations for the same anatomic area under different diagnostic codes that evaluate different functional impairments. See Esteban v. Brown, 6 Vet. App. 259 (1994). The veteran's claim for a higher evaluation is an original claim that was placed in appellate status by a notice of disagreement (NOD) expressing disagreement with an initial rating award. As such, separate ratings may be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). Based on the evidence discussed below, the Board finds that the level of the veteran's service-connected disabilities have remained static. As discussed above, the regulations evaluating the veteran's low back disability and hepatitis were changed during the pendency of this appeal. According to VAOPGCPREC 7-2003 (Nov. 19, 2003), when a new statute is enacted or a new regulation is issued while a claim is pending before VA, VA must first determine whether the statute or regulation identifies the types of claims to which it applies. If the statute or regulation is silent, VA must determine whether applying the new provision to claims that were pending when it took effect would produce genuinely retroactive effects. If applying the new provision would produce such retroactive effects, VA ordinarily should not apply the new provision to the claim. If applying the new provision would not produce retroactive effects, VA ordinarily must apply the new provision. Statutes and regulations are presumed not to apply in any manner that would produce genuinely retroactive effects, unless the statute or regulation itself provides for such retroactivity. See Landgraf v. USI Film Products, 511 U.S. 244 (1994); Regions Hospital v. Shalala, 522 U.S. 448 (1998); Kuzma, supra. The changes to the rating criteria that are applicable to the current case have not provided for such retroactive application. Evaluation of Degenerative Disc/Joint Disease of the Lumbar Spine In a written statement of April 1995, the veteran claimed that he had chronic pain in his lower back that would radiate into his buttocks. He reported having a hard time bending over. In October 1996, the veteran asserted that he had low back pain 90 percent of the time. He was unable to sleep on his back and this forced him to sleep on his stomach. The veteran claimed that such activities as exercising, lifting, and situps caused lower back pain. At his Board hearing in March 2000, the veteran testified that he worked as a private security guard. He noted that wearing a weapons belt when walking or standing would irritate his back. Due to his back pain, he had requested that he only work two days a week of walking patrol and three days of sitting at a guard desk. He indicated that he took Acetaminophen and Naprosyn for his back pain. The veteran claimed that after doing strenuous activity, such as lifting, he would not be able to move the next day. He asserted that he was unable to hold his baby child, but could carry the infant in a front or back pack. The veteran also acknowledged that he continued to do normal activities even though these activities would result in back pain. He claimed that when he woke up in the mornings he was initially unable to move his back, but with walking around and taking Naprosyn he would become functional. A military Medical Board Narrative Report dated in September 1995 noted that the veteran suffered with myofascial lower back pain during increased physical activity. His back pain was exacerbated when he wore a helmet and rucksack. His pain was so severe that it would reportedly wake him up at night and he found it difficult to find a position to sleep in. On examination, the spine had full range of motion with pain. There was mild scoliosis to the left and tenderness to palpation around the L5-S1 level. His strength was 4 on a scale from 1 (minimal) to 5 (full), and reflexes were present. The lower extremities appeared to be within normal limits. It was noted that the veteran was on a permanent profile that allowed him to run at his own pace and distance, march only five miles, and lift weights no greater than 40 pounds. The diagnoses included chronic back pain due to decreased L5-S1 disc space and right myofascial pain. VA and post-service military outpatient records dated from the late 1990s to the early 2000s noted the veteran's complaints of low back pain. He was afforded a VA compensation examination in September 1997. The veteran complained of intermittent back pain that prohibited him from lying down on a hard surface. He claimed that his low back pain would awaken him every morning at 5:00 am and he had difficulty straightening his back every morning. The veteran asserted that he was "unable to jump off a table and land on his feet, he gets electric shocks going up his back when he does this." He took Naprosyn and Tylenol #3 for his low back pain, but asserted that this medication did not help. On examination, there was no edema in the lower extremities, his toes were downgoing, deep tendon reflexes were normal, and his motor strength was intact. Range of motion in the spine was 100 degrees forward flexion, 25 degrees backward extension, 30 degrees right and left lateral flexion, and 80 degrees right and left lateral rotation. A lumbar spine magnetic resonance image (MRI) revealed a moderate sized central/left paracentral herniated nucleus pulposus at the L5-S1 level abutting the left-sided nerve root, and marked bilateral neural foramina stenosis at the L4-L5 level. The diagnoses included degenerative joint disease of the lumbar spine. The veteran was given another VA compensation examination in May 1999. He complained of constant low back pain/aching, that worsened with prolonged standing, lying down, or lifting heavy weights. While having constant low back pain, the veteran acknowledged that he continued to be functional. The veteran reported that he was able to fully undertake the job requirements as a security officer, was able to drive freely, do the normal activities of daily living, exercise and lift weights in a repetitive fashion, and jog approximately one mile. However, he reported the lifting weights and jogging did cause some low back pain. This pain was not incapacitating. The veteran took Panadol, Motrin, and Tylenol #3 for his back pain with varying results. The veteran denied symptoms of lower extremity paresthesia, disesthesia, bowel/bladder incontinence, locking, or being bed ridden. He claimed that his back pain did require some bed rest in the past. On examination, the veteran was fully ambulatory without the use of any assistive devices. He was coordinated with good muscle tone and muscle development with no evidence of muscle atrophy. He was in no acute distress. There were no posture or gait abnormalities. The extremities had no clubbing, cyanosis, or edema. Range of motion in the back was to 90 degrees forward flexion. He was able to touch the floor with the tips of his fingers and straighten back up with minimal discomfort. The veteran could extend his back to 25 degrees with some minimal discomfort elicited. Lateral flexion was to approximately 30 degrees and lateral rotation was to 25 degrees, both with minimal discomfort. Straight leg raises resulted in some mild discomfort at approximately 70 degrees in both legs. There was no evidence of radiating pain. Deep tendon reflexes were present. The veteran was able to heel and toe walk with no discomfort. When rising from a lying position, the veteran evidenced some torso rotation and mild discomfort. A lumbar spine X-ray of May 1999 revealed some degenerative disc narrowing at the L5-S1 level with on other significant findings. The radiologist's impression was degenerative disc disease at the L5-S1 level. The diagnoses included degenerative disc disease at the L5-S1 level with past references of evidence of herniated nucleus pulposus at the "L4-S1." The veteran's degenerative disc/joint disease of the lumbar spine is currently rated 10 percent disabling effective from November 5, 1996 (the date following the veteran's separation from active service). This disorder was evaluated under VA's Schedule for Rating Disabilities, 38 C.F.R. § 4.71a, Diagnostic Codes (Codes) 5293-5292 (old criteria) and 5237 (new criteria). According to the General Rating Formula for Diseases and Injuries of the Spine, normal range of motion of the thoracolumbar spine is 0 to 90 degrees forward flexion, 0 to 30 degrees backward extension, 0 to 30 degrees lateral flexion, and 0 to 30 degrees lateral rotation. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-43 (Effective on September 26, 2003). Based on the examination reports above, the Board finds that the veteran's low back disability has only resulted in minimal loss of motion. The veteran has acknowledged to his examiners that he has maintained his functional ability, even during exacerbations of his pain. While he has requested that his work duties be tailored to his limitations, he is still able to perform the physical tasks of his occupation as a security officer to include walking patrol and wearing equipment. The veteran also retains his ability to exercise, jog, and even lift weights. While these activities, in addition to prolonged standing and lying down, cause increased levels of pain and stiffness, there is little lay or medical evidence that his low back symptoms have significantly interfered with his industrial adaptability. Even considering symptomatic exacerbation of his low back pain and stiffness, these symptoms have not resulted in any significant additional loss of functional ability. The Board finds that after considering the provisions of 38 C.F.R. §§ 4.40 and 4.45, the range of motion noted on his compensation examinations accurately reflects his functional ability. As both the medical evidence and the veteran's own lay statements support this finding, there is no reasonable doubt that the veteran's range of motion in his spine is significantly worse than that noted on examination. See 38 C.F.R. § 4.3. Based on the evidence discussed above, the Board finds that this evidence does not support the award of an increased evaluation for the veteran's degenerative disc/joint disease of the lumbar spine, either under the old or new criteria. The old criteria at Code 5292 require a moderate level of limitation of motion in the lumbar spine in order to award a 20 percent evaluation. The range of motion studies in 1997 and 1999 have consistently shown only slight or minimal loss of motion due to discomfort. The lay evidence indicates that the veteran has remained functional even with exacerbations of his back pain. Thus, both the medical and lay evidence shows that the veteran's lumbar spine motion has only minimal or slight limitation. The General Rating Formula for Diseases and Injuries of the Spine (Codes 5235 through 5242) required thoracolumbar spine forward flexion greater than 30 degrees but less than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm/guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. As noted above, the medical and lay evidence shows only minimal limitation of motion in the spine. The range of motion noted in 1995, 1997, and 1999 far exceed the requirements under the General Formula for a 20 percent evaluation. Examination in May 1995 did reveal tenderness in the lumbar spine area and mild scoliosis. However, this examination was conducted approximately a year and a half prior to his separation from active service in November 1996. Multiple post-service examinations have not found any evidence of scoliosis or other postural defect, nor have they noted tenderness about the lumbar spine. Based on this evidence, the Board finds that the preponderance of the evidence is against a finding that scoliosis has been present in the veteran's spine since his separation from active service. Based on this analysis, the Board finds that the evidence does not support the award of a 20 percent evaluation under the General Formula for the veteran's low back disability. Under Note (2) at new Code 5293 and Note (1) at new Codes 5235-42, the Board must determine if separate evaluations under the orthopedic and neurologic diagnostic criteria are appropriate. The only neurological symptom noted by the veteran regarding his low back was radiating pain into his buttocks. Other than degenerative disc/joint disease, the objective examinations since the veteran's separation from active service have failed to find any orthopedic or neurologic abnormality associated with his lower extremities, and the veteran has consistently denied any neurologic or orthopedic symptoms associated with his lower extremities. There have been no diagnoses or findings of radiculopathy since the veteran's separation from active service. Therefore, the Board finds that the veteran's degenerative disc/joint disease of the lumbar spine has not resulted in additional orthopedic or neurologic disease or disabilities that would warrant separate evaluations under 38 C.F.R. §§ 4.71a, 4.73, or 4.123/4.124. The veteran has complained of pain radiating into his buttocks. This evidence raises the issue of rating the veteran's low back disability by analogy under the new criteria at Code 5243 (intervertebral disc syndrome) for incapacitating episodes. See 38 C.F.R. § 4.20. Note (1) at new Codes 5293 and 5243 define incapacitating episodes as a period of acute symptoms that requires "prescribed bedrest by a physician and treatment by a physician." The treatment records are silent as to any physician prescribing bed rest for the veteran's low back complaints. While the veteran has noted that he took bed rest in the past to help alleviate his low back symptoms, he has acknowledged that these episodes were not incapacitating. In addition, the veteran has denied having any episodes that forced him to miss work. Thus, while the veteran may have episodic flare-up of his low back symptomatology, these episodes do not rise to the level of an incapacitating attack as defined under the new criteria at Codes 5293 and 5243. The old criteria at Code 5293 required moderate recurring attacks of intervertebral disc syndrome to award a 20 percent evaluation. While the veteran has noted constant low back pain that can be exacerbated by certain activities, he has not indicated the existence of any significant radiculopathy into his lower extremities. The medical evidence does not support a finding of attacks of intervertebral disc disease. The reports have consistently shown no objective demonstration of muscle spasm in recent years and only slight limitation of motion with no neurologic involvement. Based on this evidence, the Board finds that the symptoms of the low back disability cannot be characterized as moderate intervertebral disc syndrome. Therefore, a higher evaluation under the old criteria at Code 5293 is not warranted. The only functional limitation found on examinations associated with the low back disability was with the function of the lumbar spine. As noted above, this level of functional impairment warrants a 10 percent evaluation under old Code 5292 and new Code 5237. As a compensable evaluation for limitation of motion in the lumbar spine has been awarded, additional compensation for degenerative arthritis is not authorized under Code 5003 (degenerative arthritis). As there is no medical or radiological evidence of fractured vertebra, ankylosis, or fixation of the lumbar spine, evaluation under the old criteria at Codes 5285 (vertebra fracture), 5286 (complete spinal ankylosis), and 5289 (lumbar spine ankylosis) is not warranted. For a higher evaluation of 20 percent under the old criteria at Code 5292 (lumbosacral strain), the evidence must show muscle spasm on extreme forward bending with loss of lateral spine motion. Such findings have not been noted in either the lay or medical evidence. The veteran's consistent complaint has been constant pain and stiffness. There is no evidence that the veteran has suffered with muscle spasm of any significance since his separation from active service. There is also no evidence of listing of the whole spine to the other side, positive Goldwaite's sign, marked limitation of forward bending in the standing position, loss of lateral motion with osteo-arthritic changes, or some of the above with abnormal mobility on forced motion. The medical evidence does corroborate the existence of some minimal loss of motion and degenerative changes/narrowing in the lumbar spine. As noted above, the veteran's loss of motion in the lumbar spine would only be characterized as slight. Based on the examination reports and lay evidence showing that the veteran continued to have significant functional ability in the lumbar spine, the Board finds that his symptoms are not analogous to a moderate degree of lumbosacral strain. Thus, an increased evaluation is not warranted under the old criteria at Code 5295. Based on the above analysis, the preponderance of the evidence is against the award of an evaluation for the veteran's low back disability in excess of 10 percent disabling. The Board finds that whether or not the new orthopedic rating criteria have retroactive effect is irrelevant. As discussed above, the medical evidence does not provide any basis for the award of higher evaluations under either the old or new rating criteria at any time during the appeal period. Thus, the Board has concluded that the condition has not changed during this appeal and that a uniform rating is warranted. Fenderson, supra. Evaluation of Hepatitis C In October 1996, the veteran claimed that his Hepatitis had resulted in tiredness, lack of energy, and slight pain about his liver. At his hearing in March 2000, the veteran testified that he was taking three injections of Interferon a week to stop the progression of his liver disease. He indicated that he had a "damaged" liver and that the inflammation of his liver was rated as a "Class IV." The veteran claimed that in the mornings it was difficult for him to wake up and get out of bed due to a lack of energy. Therefore, he was forced to schedule his work in the evenings. The veteran noted that diagnostic tests had shown cysts all over his liver and blood work had revealed "bad" liver enzymes. He testified that his treating physicians were unable to obtain a biopsy of his liver due to his severe liver pain. The military Medical Board examination of September 1995 indicated that the veteran had a chronic Hepatitis C infection. He was diagnosed with this infection in February 1995 and was undergoing an experimental Interferon protocol, which after the injections left him extremely tired for two days. On examination, his abdomen was soft and nontender. There was no organomegaly, discoloration, or distention present. Lab results showed a positive increase in liver function test and a positive Hepatitis C panel. It was noted that an April 1995 ultrasound revealed multiple hepatic cysts on the liver. The diagnoses included chronic Hepatitis C. Private outpatient examinations in 1997 consistently noted that the abdomen was within normal limits. In February 1997, the examiner indicated that the veteran's liver was palpable "at edge." VA outpatient records dated from the late 1990s to early 2000s also noted impressions of chronic Hepatitis C. During the veteran's September 1997 VA compensation examination, the veteran complained of chronic fatigue and lack of energy of insidious onset that was becoming worse over time. He noted that experimental treatment with Urised and Interferon had no effect on his hepatitis symptoms. The veteran denied any symptoms of night sweats or weight loss. On examination, the liver was normal and without tenderness or organomegaly. Lab testing revealed that the veteran was positive for Hepatitis C antibody. The diagnoses included chronic Hepatitis C infection with chronic active hepatitis. Another VA compensation examination was given to the veteran in May 1999. The veteran complained of chronic fatigue. He denied any history of upper gastrointestinal bleeding, esophageal varices, melena/tarry stools, or jaundice. On examination, the veteran was well nourished and in no acute distress. There was no evidence of telengiectases. The abdomen was soft with no evidence of masses or hepatosplenomegaly. Lab testing revealed that the veteran was positive for Hepatitis C antibody. The diagnoses included chronic Hepatitis C with no evidence of cirrhotic liver disease. The veteran's Hepatitis C is currently rated 10 percent disabling effective from November 5, 1996. This disorder was evaluated under VA's Schedule for Rating Disabilities, 38 C.F.R. § 4.114, Diagnostic Code (Code) 7345 (old and new criteria). As discussed above, the regulations evaluating the veteran's Hepatitis C were changed during the pendency of this appeal. Based on the medical and lay evidence noted above, the Board finds that the veteran has minimal liver damage associated with fatigue and gastrointestinal disturbances necessitating dietary restrictions and ongoing therapeutic measures. Therefore, he is entitled to a 30 percent evaluation under the old criteria at Code 7345. However, a higher evaluation is not warranted under these criteria. Ultrasound evidence has revealed multiple cysts on his liver, but no other abnormality has been shown with this organ. There are no findings of organomegaly with the liver. While the veteran does suffer with fatigue and gastrointestinal disturbances, these symptoms are not disabling and, based on his lay evidence, have not significantly impaired his industrial adaptability. His only interference with his work as a security officer was to request a shift late in the day. Based on this medical and lay evidence, the Board finds that the evidence does not support a 60 percent evaluation under the old criteria at Code 7345. An evaluation under the criteria at old Code 7312 (cirrhosis of the liver) is not appropriate as the veteran has not received a diagnosis for cirrhosis of the liver. Even if these criteria were to be considered by analogy, a 50 percent evaluation requires moderately severe cirrhosis with enlarged liver, abdominal distention, early ascites, muscle wasting, and loss of strength. None of these symptoms have been found on repeated examinations. Turning to the new criteria, to receive a 40 percent evaluation under the new Codes 7345 (liver disease without cirrhosis) and 7354 (Hepatitis C), the evidence must demonstrate daily fatigue, malaise, and anorexia with minor weight loss and hepatomegaly. In the alternative, the liver disease must result in incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during the past 12 months. Note (2) at Code 7345 defines an incapacitating episode as a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. There is no medical or lay evidence of weight loss, hepatomegaly, or incapacitating episodes (to include bed rest) resulting from the veteran's Hepatitis C infection. Therefore, a higher evaluation is not authorized under the new criteria at Codes 7345 and 7354. As there is no evidence of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis), a 50 percent evaluation is not warranted by analogy under new Code 7312 for cirrhosis of the liver. Upper GI studies have consistently been negative or normal and the only abnormalities noted on ultrasounds of the liver are cysts. Neither the lay or medical evidence supports a higher evaluation under new Code 7312. Therefore, the evidence supports an evaluation of 30 percent for the veteran's active Hepatitis C infection under the old criteria at 7354. The Board finds that the veteran's cysts of the liver and symptoms of fatigue and gastrointestinal disturbances do not support a higher evaluation under either the old or new criteria. As noted above, an evaluation under the new criteria cannot be retroactive prior to its effective date. There is no indication in the rating criteria at 38 C.F.R. § 4.114 that the changed provisions were to have retroactive effect. As discussed above, the medical evidence does not provide any basis for the award of an evaluation higher than 30 percent under either the old or new rating criteria at any time during the appeal period. Thus, the Board has concluded that the condition has not changed during this appeal and that a uniform rating is warranted. Fenderson, supra. Evaluation of GERD In October 1996, the veteran claimed that his GERD had caused severe abdominal pain, cramps, diarrhea, and abdominal swelling. He indicated that he was now unable to eat half the food he could previously eat. At his hearing in March 2000, the veteran testified that he took Tagamet, Simethicone, Prevacid, and Cimetidine everyday to control his GERD. He complained having acid indigestion/heartburn, abdominal gas, loose stools, and chest pain. The veteran indicated he had to follow a special diet to control his symptoms. On his VA compensation examination of September 1997, the veteran complained of recurrent gas and constant heartburn that were aggravated by certain foods. The veteran indicated that his heartburn could be relieved by Zantac and Tagamet, but he was forced to take this medication daily. He also complained of intermittent episodes of right upper quadrant burning pain that was severe and would last for a period of days. Examination of the abdomen was normal with normal bowel sounds. An upper gastrointestinal study (X-ray) was reported to be normal. The diagnoses included GERD. On the VA compensation examination of May 1999, the veteran complained of reflux, chronic gastritis, and abdominal bloating. He claimed that these symptoms were exacerbated by certain foods. The veteran denied any prior history of regurgitations, peptic ulcer disease, or hiatal hernia. He claimed that he took Prevacid and Simethicone daily, which provided good relief of his symptoms. As noted above, examination of the veteran's abdomen found it soft with no masses or organomegaly. An upper GI series noted normal findings. The diagnoses included GERD with no evidence of peptic ulcer disease or hiatal hernia. The veteran's GERD is currently rated noncompensable effective from November 5, 1996 under VA's Schedule for Rating Disabilities, 38 C.F.R. § 4.114, Diagnostic Code 7346 (hiatal hernia). A 30 percent evaluation is authorized under these criteria for persistently recurrent epigastric distress with dysphagia (difficulty in swallowing), pyrosis (heartburn), and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 10 percent evaluation is warranted when two or more of the symptoms for the 30 percent evaluation are present, but are of less severity. Both the medical and lay evidence show that the veteran suffers with frequent heartburn and substernal pain. He reportedly must take medication daily and restrict his diet in order to control these symptoms. Resolving all reasonable doubt regarding his symptomatology in the veteran's favor, the Board finds that a 10 percent evaluation is warranted under Code 7346. However, neither the lay or medical evidence has shown symptoms of difficulty swallowing or regurgitation. In addition, there is little lay evidence that the veteran's GERD has in any significant way interfered with his usual activities (other than his diet) or his industrial adaptability. He has not reported any interference in his duties as a security officer due to his GERD. Therefore, the evidence does not support a higher evaluation under Code 7346. A higher evaluation under old and new Code 7307 (gastritis) is not supported by the evidence. For a 30 percent evaluation under this Code, the evidence must show chronic gastritis with multiple small eroded or ulcerated areas and symptoms. The veteran's upper GI series have consistently been normal. Therefore, there is no evidence of eroded or ulcerate areas and a higher evaluation under old and new Code 7307 is not authorized. In conclusion, the Board finds that the veteran's symptomatology warrants no more than a 10 percent evaluation under Code 7346. While the veteran does appear to suffer with epigastric distress, there is no evidence this disability has had a considerable impairment on his health. A review by the Board of both the old and new criteria at 38 C.F.R. § 4.114, Diagnostic Codes 7307 and 7346 reveals that there were no changes made to these criteria. Therefore, whether the new criteria have retroactive effect is moot. As discussed above, the medical evidence does not provide any basis for the award of a higher evaluation than 10 percent under either the old or new rating criteria at any time during the appeal period. Thus, the Board has concluded that the condition has not changed during this appeal and that a uniform rating is warranted. Fenderson, supra. Conclusion Based on the above analysis, the evidence supports a higher evaluation for the veteran's Hepatitis C to 30 percent disabling and his GERD to 10 percent disabling. The preponderance of the evidence is against higher evaluations for the veteran's degenerative disc/joint disease, Hepatitis C, and GERD. While the appellant is competent to report symptoms, a preponderance of the lay and medical evidence does not support higher evaluations. The Board finds that the examination reports prepared by competent professionals, skilled in the evaluation of disabilities, are more probative of the degree of impairment than the lay statements. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (Holding that interest in the outcome of a proceeding may affect the credibility of testimony.) To this extent, the preponderance of the evidence is against higher evaluations and the doctrine of reasonable doubt is not for further application. See 38 U.S.C.A. § 5107(b), Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an evaluation in excess of the 10 percent disabling for degenerative disc/joint disease of the lumbar spine is denied. Entitlement to an evaluation of 30 percent, but not more, for Hepatitis C is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an evaluation of 10 percent, but not more, for GERD is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND In the VA compensation examination report of May 1999 it was noted that the veteran underwent a pulmonary function test (PFT) in order to evaluate his service-connected bronchial asthma. The examiner reported test results of forced expiratory volume in one second ("FEV-1"), "functional capacity," "FVS," and "functional vital capacity." The "functional vital capacity" was reported to be 4.44 or 103% of predicted. The examiner concluded, based on these test results, that the veteran's vital capacity and flow rates were within normal limits. The criteria evaluating asthma at 38 C.F.R. § 4.97, Diagnostic Code 6602, requires the administration of a PFT that reports values for FEV-1 and "forced expiratory volume in one second to forced vital capacity" (FEV-1/FVC). The schedular criteria indicate that the FEV-1/FVC is to be reported as a percentage, not a numerical score or a percentage of predicted. Therefore, it is not possible for the Board to infer that the May 1999 examiner was referring to FEV-1/FVC in his report when discussing "functional capacity" or "functional vital capacity." The actual May 1999 PFT test report was not attached to the compensation examination and a thorough review of the VA medical records contained in the claims file does not indicate that this PFT report has been obtained. Therefore, on remand the AOJ should request a copy of the May 1999 PFT report. See 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(2). Accordingly, the case is REMANDED to the AOJ for the following action: The AOJ should contact the VA medical facility (or any other appropriate VA facility) at which the veteran's May 26, 1999 compensation examination was conducted, and request a legible copy of the pulmonary function test report for such a test conducted on or about the date of the compensation examination. If such a report is unavailable or destroyed, the VA facility must so indicate this fact in its response to the AOJ. All responses and/or evidence received must be associated with the claims file. If upon completion of the above action the claim remains denied, the case should be returned after compliance with requisite appellate procedures. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. 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 The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). ____________________________________________ J. Martin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs