Citation Nr: 1425033 Decision Date: 06/04/14 Archive Date: 06/16/14 DOCKET NO. 11-00 734 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for degenerative joint disease (DJD) of the bilateral shoulders. 4. Entitlement to service connection for a back condition. 5. Entitlement to service connection for a skin condition. 6. Entitlement to service connection for a colon condition. 7. Entitlement to an initial rating in excess of 10 percent for left hand arthritis. 8. Entitlement to an initial compensable rating for right hand arthritis. 9. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Karen Y. Vicks ATTORNEY FOR THE BOARD R. Sauter, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1969 to March 1977, with subsequent Reserve service. This case comes on appeal before the Board of Veterans' Appeals (Board) from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware. The Veteran did not report for an April 2014 travel Board hearing and did not show good cause for his absence. His hearing request is considered withdrawn. 38 C.F.R. § 20.702 (d) (2013). As explained below, the Board finds that the issue of entitlement to a TDIU has been reasonably raised by the record in this case. Consequently, the issue is considered part of the Veteran's increased rating appeal and is included among the issues listed on the first page of this decision. The issues of service connection for a back condition, a skin condition, and a colon condition, and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The competent medical evidence does not establish the presence of bilateral hearing loss recognized as a disability for VA purposes. 2. The Veteran did not have chronic symptoms of hypertension in service, and symptoms of hypertension were not continuous since service separation. 3. Hypertension did not become manifest to a degree of 10 percent within one year from the date of separation from service. 4. Currently diagnosed hypertension is not related to service. 5. No disease or chronic symptoms of DJD of the bilateral shoulders were manifested during service, and the Veteran did not continuously manifest symptoms of DJD of the bilateral shoulders in the years after service. 6. DJD of the bilateral shoulders was not manifested to a degree of ten percent within one year of service separation. 7. DJD of the bilateral shoulders is not caused by any in-service event and is not related to active service. 8. For the entire initial rating period on appeal, left hand arthritis was manifested by pain and functional impairment, but not a gap of more than 2 inches (5.1 cm) between the thumb pad and the fingers with the thumb attempting to oppose the fingers. 9. For the entire initial rating period on appeal, right hand arthritis was manifested by pain and functional impairment, but not a gap of more than 2 inches (5.1 cm) between the thumb pad and the fingers with the thumb attempting to oppose the fingers. CONCLUSION OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385 (2013). 2. The criteria for service connection for hypertension have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2013). 3. The criteria for service connection for DJD of the bilateral shoulders have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 4.9 (2013). 4. The criteria for an initial rating in excess of 10 percent for left hand arthritis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5003-5229 (2013). 5. The criteria for an initial 10 percent rating, but no higher, for right hand arthritis have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5003-5229 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). With regard to the service connection claims, the VCAA duty to notify initially was satisfied by way of pre-adjudicatory letters the RO sent to the Veteran in January and June 2008. These letters informed of the evidence required to substantiate the claim and of the respective responsibilities in obtaining this supporting evidence, including advising of how disability ratings and effective dates are assigned. Thus, the Veteran has received all required notice concerning the claim. As the left and right hand arthritis claims involve initial ratings and come before the Board on appeal from the decision which also granted service connection, there can be no prejudice to the Veteran from any alleged failure to give adequate 38 U.S.C.A. § 5103(a) notice for the service connection claim. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement). VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting in the procurement of service treatment records (STRs) and pertinent post-service treatment records (VA and private) and providing an examination when needed to assist in deciding the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished. The claims file contains the Veteran's STRs, VA medical treatment evidence, and the Veteran's statements. The Veteran has indicated that he is seeking Social Security Disability benefits; however, he has not indicated that he is seeking Social Security Disability benefits as a result of his service-connected disabilities; therefore, it is not necessary to obtain those records. The Veteran underwent a VA hand, thumb, and fingers examination, and a VA audiology examination in May 2008. He was provided another VA hand, thumb, and fingers examination in August 2013. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The May 2008 and August 2013 VA examinations are adequate because they were performed by medical professionals, and were based on a review of the record and history and symptomatology from the Veteran and a thorough examination of the Veteran. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Veteran was not examined by VA with regard to his claims for service connection for hypertension and a bilateral shoulder condition but, as will be explained below, the evidence does not demonstrate a related injury, disease, or event during service; therefore, no examination or nexus opinion is required, and any opinion would be speculative, as there is no injury, disease, or event during service to which such currently diagnosed disorders could be related. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible, a VA examination is not required). The Veteran has not identified, and the record does not otherwise suggest, any additional existing evidence that is necessary to decide this claim that has not been obtained and that is obtainable; therefore, no further notice or assistance with this claim is required. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). VA's duties to notify and assist with this claim have been satisfied. Service Connection Legal Authority In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998). A current disability means a disability shown by competent evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997). The most fundamental requirement for any claim for service connection is current disability. See Degmetich v. Brown, 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); but see McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Where a veteran served ninety days or more of active service, and certain chronic diseases, such as hypertension, arthritis, or an organic disease of the nervous system, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. The Veteran's claimed bilateral hearing loss is an organic disease of the nervous system, which is listed as a "chronic disease" under 38 C.F.R. § 3.309(a); however, as discussed below, the Veteran does not meet the criteria for VA compensation purposes. Therefore, 38 C.F.R. § 3.303(b) does not apply to the hearing loss claim. Hypertension and DJD are chronic diseases listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies to those claims. Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). The Veteran's claimed skin disorder is not a chronic disease, thus, the aforementioned presumptions do not apply to that claim. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board must assess the credibility and weight of evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Service Connection for Hearing Loss The Veteran contends that he has hearing loss as a result of acoustic trauma during his active duty service. Specifically, he asserts that he was exposed to jet engines and helicopters while wearing hearing protection. The appellant does not have a currently diagnosed bilateral hearing loss disability for VA compensation purposes. The appellant was afforded a May 2008 VA audiology examination. Upon clinical examination, speech recognition scores were 100 percent in the right ear and 98 percent in the left ear. Pure tone thresholds, measured in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 20 15 20 LEFT 20 20 25 20 30 The clinical results reported do not meet the requirements for a hearing loss disability in either ear, as set out in VA regulations at 38 C.F.R. § 3.385. Specifically, none of the thresholds in any of the frequencies between 500 and 4000 Hertz is 40 decibels or greater; there are not at least three frequencies between 500 and 4000 Hertz that are 26 decibels or greater; and, speech recognition scores are not less than 94. Congress has specifically limited entitlement to service-connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. § 1110. In this case, where the evidence shows no current hearing loss disability (see 38 C.F.R. § 3.385) upon which to predicate a grant of service connection at any time during the claim period, there can be no valid claim for that benefit. See Gilpin, 155 F.3d 1353; Brammer, 3 Vet. App. 223, 225. The appellant is competent to report symptoms of hearing loss that he may have experienced at any time. See Layno, 6 Vet. App. 465, 470. As a layperson, however, he is not competent to diagnose a bilateral hearing loss disability, because hearing loss is identified by objective and specific audiometric and speech recognition testing. Jandreau, 492 F.3d 1372, 1377. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for bilateral hearing loss, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Service Connection for Hypertension The Veteran contends that his currently diagnosed hypertension is a result of his active duty service. The Board finds that the Veteran did not have chronic symptoms of hypertension in service. The service treatment records are negative for treatment, diagnoses, or complaints of any disease or injury relating to hypertension. Upon separation from service, no hypertension or concerns of high blood pressure were noted. The Board further finds that symptoms of hypertension were not continuous since service separation. A service treatment record dated in April 1989, during the Veteran's Reserve service and over 10 years after separation from active duty service, shows blood pressure was 130/80. He did not report high blood pressure on his April 1998 report of medical history. A June 2006 private treatment record from Bay Health Medical Center shows that the Veteran had a diagnosis of hypertension, but was not taking medication. A July 2006 record shows a diagnosis of hypertension, stable. A March 2009 VA outpatient treatment record shows a diagnosis of hypertension, and also shows that the Veteran is taking daily medication for blood pressure. The Board finds that currently diagnosed hypertension is not related to service. The weight of the evidence demonstrates that the Veteran was not diagnosed with hypertension until 2006, nearly 30 years after his separation from service. Although the record does not contain a precise date of the Veteran's diagnosis, the record shows that he was not treating his hypertension with medication as recently as 2006. Further, the weight of the lay and medical evidence shows that he did not have hypertension in 1989, 10 years after separation from service. The Board has considered the Veteran's statements asserting a nexus between currently diagnosed hypertension active duty service. To the extent to which the Veteran attempted to provide an etiological opinion between his hypertension and active duty service, he is not competent to do so in this particular case. Determining the etiology of hypertension is a complicated medical question which may be multi-factorial and involves interpretation of clinical tests to determine cause, assess damage and identify risk factors. See, The Merck Manual, §7, Chapter 71, 604-606 (18th ed. 2006)(explaining primary versus secondary hypertension, noting different risk factors, and discussing types of tests that can be performed in the work-up of a patient with hypertension). The Veteran has not demonstrated he has the knowledge, education or training to provide an opinion in such a complicated matter and therefore his opinion as to the etiology of his hypertension is not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran may be competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); see also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating this axiom in a claim for rheumatic heart disease). Additionally, where certain chronic diseases, including hypertension, become manifest to a degree of 10 percent within one year from the date of separation from service, such disease shall be considered to have been incurred or aggravated by such service, notwithstanding there is no evidence of that disease during service. 38 U.S.C.A. §§ 1101, 1112(a); 38 C.F.R. §§ 3.307. 3.309(a). In this case, the weight of the evidence does not demonstrate that the Veteran was diagnosed with hypertension to a compensable degree within one year of separation from service, nor is the Veteran competent to provide such evidence of a diagnosis, because he is a lay person. Rather, as noted, the evidence of record indicates that he was diagnosed with hypertension in or about 2006, nearly 30 years after his separation from service. Thus, service connection is not warranted on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for hypertension, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Service Connection for DJD of the Bilateral Shoulders The Veteran contends that DJD of the bilateral shoulders is related to his active duty service. The Veteran has not alleged that he sustained any specific shoulder trauma in service. The Board finds that no disease or chronic symptoms of DJD of the shoulders were manifested during service. Service treatment records are silent for complaints, treatment, symptoms, or diagnoses of any shoulder trouble. No shoulder problems were noted on the December 1976 report of medical examination, conducted upon separation from service. The Board finds that the Veteran did not continuously manifest symptoms of DJD of the bilateral shoulders in the years after service. An April 1998 report of medical examination, conducted during the Veteran's Reserve service and over 20 years after separation from active duty, shows normal upper extremities and normal spine and other musculoskeletal. The April 1998 report of medical history shows no complaints of shoulder problems. Rather, the Veteran denied trick or problem shoulder. The Veteran was afforded a December 2007 VA shoulder x-ray. The VA radiologist noted degenerative changes in the right shoulder. The Board has considered the Veteran's statements that his current DJD of the shoulder is related to service. Although lay persons are competent to provide opinions on some medical issues, see Kahana, 24 Vet. App. at 435, as to the specific issue in this case, an opinion as to the onset and continuity of a shoulder disability as complex as arthritis falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377 n.4 (lay persons not competent to diagnose cancer). The medical and lay evidence of record shows that symptoms of DJD of the bilateral shoulders were not continuous since service separation, but rather did not manifest until years after service. The Board further finds that DJD of the bilateral shoulders was not manifested to a degree of ten percent within one year of service separation. In reaching this conclusion, the Board does not rely on the absence of any in-service diagnosis; rather, the Board relies on the affirmative evidence of record, which includes evidence showing that, by his own report, the Veteran's shoulder was normal in April 1998, over 20 years after service separation. For the reasons stated above, presumptive service connection pursuant to 38 C.F.R. § 3.309(a) for a chronic disease manifested to 10 percent within one year from service separation is not warranted. The Board finds that the Veteran's DJD of the bilateral shoulders is not caused by any in-service event and is not related to active service. There is no evidence of record, other than the Veteran's statements, which relates the DJD of the bilateral shoulders to active service. There is no record of in service trauma to the shoulder, and the Veteran has not alleged trauma. Although the Veteran has attempted to relate his current shoulder disability to his active service, as a lay person, he is competent to describe observable symptoms such as pain, but he is not competent to diagnosis an orthopedic disability or medically relate such disability to service, as this question is of the type that the courts have found to be beyond the competence of lay witnesses. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The diagnosis of an orthopedic disability, such as one involving the shoulders, is based on medical evaluation and clinical testing by a competent expert, as any such disability is internal to the body and not easily observed via the senses by a lay party. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for DJD of the shoulder, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Initial Ratings for Left and Right Hand Arthritis The Veteran seeks higher initial ratings for the service-connected left and right hand arthritis. By way of history, service connection was initially granted in a September rating decision. At that time a noncompensable evaluation was assigned to each hand. An October 2013 rating decision granted an increased 10 percent evaluation for the left hand under Diagnostic Codes 5003-5229, and continued the noncompensable rating for the right hand. The Veteran argues the current 10 percent and noncompensable evaluations do not accurately reflect the severity of his disability. Having carefully considered the claim in light of the record and the applicable law, the Board finds that, with regard to the left hand arthritis, the preponderance of the evidence is against the claim and the appeal will be denied. With regard to the right hand arthritis, the Board finds that a 10 percent rating, and no higher, is warranted. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (extending this practice even to claims that do not involve initial ratings, rather, also established ratings). The Veteran's left hand disability has been rated initially as 10 percent disabling, while his right hand disability has been initially rated as noncompensable (meaning as 0-percent disabling) under 38 C.F.R. § 4.71a, Diagnostic Code 5229, for limitation of motion of the index or long finger. Under this Diagnostic Code a zero percent rating is warranted where there is limitation of motion with a gap of less than 1 inch (2.5 centimeters (cm)) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, and; extension is limited by no more than 30 degrees. A higher 10 percent rating is warranted when there is limitation of motion with a gap of 1 inch (2.5 cm) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or; with extension limited by more than 30 degrees. Diagnostic Code 5229 does not provide for a higher than 10 percent rating. Diagnostic Code 5228 is also potentially applicable. That Diagnostic Code applies to limitation of motion of the thumb and assigns a 10 percent rating evaluation for a gap of one to 2 inches (2.5 to 5.1 cm) between the thumb pad and the fingers with the thumb attempting to oppose the fingers. A 20 percent rating evaluation is assigned when there is a gap of more than 2 inches (5.1 cm) between the thumb pad and the fingers with the thumb attempting to oppose the fingers. Diagnostic Code 5228 does not provide for a higher than 20 percent rating. All other compensable ratings under the Diagnostic Codes related to the hands and fingers require ankylosis of individual or multiple digits. If the disability is noncompensable under the appropriate Diagnostic Code for the joint involved, a 10 percent rating will be for application for such major joint or group of minor joints affected by limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Limitation of motion needs to be objectively shown by findings such as swelling, muscle spasm, or painful motion. Id. In the absence of limitation of motion, a 10 percent evaluation is warranted for x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and a 20 percent evaluation is warranted with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joints with occasional incapacitating exacerbations. Id. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. Functional loss due to pain is rated at the same level as functional loss where motion is impeded. See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). See also Burton v. Shinseki, 25 Vet. App. 1 (2011) (The provisions of § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record.). A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Moreover, although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In Mitchell, the Court held that the evaluation of painful motion as limited motion only applies when limitation of motion is noncompensable under the applicable diagnostic code. The Court further explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with DC 5003, it does not follow that the maximum rating is warranted under the applicable DC pertaining to range of motion simply because pain is present throughout the range of motion. See id. Rather, the pain "must actually affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance' [under] 38 C.F.R. § 4.40 in order to constitute functional loss" warranting a higher rating. See id. at 43. The Veteran was afforded a May 2008 VA hand, thumb, and fingers examination. The examiner noted a history of bilateral hand arthralgias, exacerbated by cold weather. Physical examination revealed no swelling or edema of the hands. He was able to oppose the distal phalanxes to the midpalmar crease. His handgrip strength was preserved. No deformity was noted. No history of flare-ups was reported. The diagnosis was arthralgias of the hands, nonspecific with no restrictions. No treatment was recommended and no other diagnostic testing was performed. The Veteran was afforded another VA examination in August 2013. The Veteran reported bilateral hand pain, aching and sharp, intermittent and daily, with a severity level of eight out of ten. The pain is worse with cold, damp weather changes, and better with heat. The Veteran reported flare-ups that impact the function of the hands, which are relieved by heat and medicine. Upon range of motion testing, the VA examiner indicated that there was no limitation of motion or evidence of painful motion for any fingers or thumbs. The Veteran was able to perform repetitive-use testing with three repetitions. There was no additional limitation of motion for any fingers post-test. There was no gap between the thumb pad and the fingers post-test. There was no gap between any of the fingertips and the proximal transverse crease of the palm in attempting to touch the palm with the fingertips post-test. There was no additional limitation in range of motion of any of the fingers or thumbs following repetitive-use testing. The VA examiner noted that there was functional loss, functional impairment, or additional limitation of range of motion, manifested by intermittent pain with grasping in the right 3-4 digits, and the left 2-4 digits. There was no tenderness or pain to palpitation for joints or soft tissue of either hand, including the thumb and fingers. The Veteran demonstrated hand grip at five out of five, normal strength. Ankylosis of the thumb and/or fingers was not present. No scars were present. The diagnosis was bilateral hand arthritis, and DJD of the bilateral thumb and carpometacarpal joints, established by x-ray findings. The VA examiner noted that the Veteran was not currently working, and had pain with grasping objects. Evaluating the evidence in light of the rating criteria outlined above reflects that a 10 percent rating evaluation, and no more, is warranted for each hand. In this case, the VA examination reflects the Veteran had did not have a gap of more than 2 inches (5.1 cm) between the thumb pad and the fingers with the thumb attempting to oppose the fingers. In fact, the August 2013 VA examination indicated the Veteran was able to oppose each finger to the thumb. The evidence reflects that the Veteran has complained of pain and limitation of motion associated with his hands and has described restriction on activities, including gripping, as a result of the disability. The August 2013 VA examiner considered the effects of painful motion, repetitive motion, and flare-ups and specifically found that there was objective evidence of additional functional loss from pain. Specifically, the VA examiner noted that there was pain with grasping in both hands. Given the lay and medical evidence of functional loss, an increased evaluation for the right hand is warranted. 38 C.F.R. §§ 4.45, 4.71a, Diagnostic Codes 5228; DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). A 10 percent rating based on pain and functional loss is already in effect for the left hand, and thus a higher rating is not warranted. As the Veteran's range of motion exceeds that of a gap of 1-2 inches (2.5-5.1 centimeters) required for a 10 percent evaluation under Diagnostic Code 5228, the Board considered whether a higher evaluation was warranted under Diagnostic Code 5003. A higher rating under this Diagnostic Code requires x-ray evidence or involvement of 2 or more major or minor joint groups with occasional incapacitating episodes. In the present case, while the Veteran has x-ray evidence of degenerative changes of the thumb, this constitutes only 1 minor joint group. See 38 C.F.R. § 4.45(f) (explaining that multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities are considered minor joints). As such, an increased evaluation under Diagnostic Code 5003 is not warranted. The Board also considered whether an increased evaluation was warranted under any other Diagnostic Codes pertaining to the hands. As noted above, however, the other Diagnostic Codes require some form of ankylosis of the thumb or fingers. As the Veteran retains some motion of the thumb, higher evaluations under these Diagnostic Codes are not warranted. See 38 C.F.R. § 4.71a, Diagnostic Codes 5216-5224; see 38 C.F.R. § 4.71a, evaluation of ankylosis or limitation of motion of single or multiple digits of the hand, Note 4 (explaining that ankylosis of the thumb will involve the carpometacarpal and/or the interphalangeal joint being ankylosed). Based on the above, the Board finds that the weight of the evidence, lay and medical, supports a disability rating of 10 percent for each hand, and no higher, for the entire rating period on appeal. Assignment of staged ratings has been considered, but found not to be applicable in this case. As the preponderance of the evidence is against a disability rating in excess of 10 percent for either hand, the benefit of the doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). Extraschedular Considerations The Board has considered whether referral for an extraschedular evaluation is warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2013). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's hand disabilities are contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating in this case is adequate. The Veteran's complaints of pain, flare-ups, and difficulty grasping are contemplated in the criteria for evaluating his bilateral hand arthritis. The applicable diagnostic criteria consider such symptoms, and as discussed above, the Board has found that the weight of the evidence does not demonstrate that the Veteran's hand arthritis manifests in a gap of more than 2 inches (5.1 cm) between the thumb pad and the fingers with the thumb attempting to oppose the fingers. The rating criteria practicably represent the average impairment in earning capacity resulting from the Veteran's service-connected hand disabilities. See 38 C.F.R. § 4.71a (2013). Therefore, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Service connection for hearing loss is denied. Service connection for hypertension is denied. Service connection for degenerative joint disease (DJD) of the shoulder is denied. An initial rating in excess of 10 percent for left hand arthritis is denied. An initial 10 percent rating, but no higher, for right hand arthritis is granted. REMAND In his December 2007 claim, the Veteran asserted that he has a current colon condition that was caused by the medication he takes for his service-connected bilateral hand arthritis. A May 2008 VA compensation and pension examination shows that the Veteran's current diagnosis is sigmoid diverticulitis status post sigmoid colectomy. The VA examiner did not provide a medical nexus opinion with regard to the Veteran's claim that diverticulitis is secondary to arthritis medication. In light of the above, the Board finds that a VA examination with medical nexus opinion is required to determine whether his diverticulitis is causally related to his service-connected disability. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). The Veteran contends that he has a current back condition that is related to service. Service treatment records show that he reported low back pain in February 1998 and May 1993. X-ray findings taken at a May 2002 VA spine examination revealed marginal osteophytes on the anterior and superior endplates of L5. The VA radiologist noted that the osteophytes were more prominent than those seen in the previous x-ray in December 1999. A VA examination is required to determine whether a medical nexus exists between the in-service complaints of back pain and the current indications of osteophytes. See McLendon, 20 Vet. App. 79; 38 C.F.R. § 3.159(c)(4). The Veteran contends that he has a current skin condition that is related to service. Service treatment records show that he went to sick call complaining of a rash in April, June and July of 1970. A December 2007 VA outpatient treatment note shows an assessment of "folliculitis/?boils: healed lesions on buttock/groin." A September 2009 VA outpatient treatment record shows that he had a boil/carbuncle to the skin of the outer chest. A VA examination is required to determine whether a medical nexus exists between the in-service complaints of rash and the current complaints of boils. See McLendon, 20 Vet. App. 79; 38 C.F.R. § 3.159(c)(4). The August 2013 VA examination report notes that the Veteran is not currently working due to his bilateral hand arthritis. As such, the issue of entitlement to a TDIU is raised by the record, and the issue is properly before the Board. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran additional VCAA notice as to the issue of entitlement to TDIU. All notification requirements and development procedures contained in 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159 (2013), must be fully met. 2. Then, schedule the Veteran for a VA examination to ascertain the current nature and etiology of his colon condition. The examiner should be requested to: a. Indicate all colon conditions currently shown, and; b. Render an opinion regarding whether it is at least as likely as not (50 percent or more probability) that any diagnosed colon condition had its onset in service or is otherwise related to service. c. Alternatively, the examiner should determine whether it is at least as likely as not that the Veteran's colon condition is proximately due to the Veteran's medication for his service-connected arthritis. The claims folder must be made available for review in connection with this examination. The examiner should provide a complete rationale for all conclusions reached. 3. Schedule the Veteran for a VA dermatology examination. The examiner should be requested to: a. Indicate all skin conditions currently shown, and; b. Render an opinion regarding whether it is at least as likely as not (50 percent or more probability) that any diagnosed skin condition had its onset in service or is otherwise related to service. The claims folder must be made available for review in connection with this examination. The examiner should provide a complete rationale for all conclusions reached. 4. Schedule the Veteran for a VA spine examination. All indicated tests and studies, including x-rays, should be performed. The examiner should be requested to: a. Indicate all spine conditions currently shown, and; b. Render an opinion regarding whether it is at least as likely as not (50 percent or more probability) that any diagnosed spine condition had its onset in service or is otherwise related to service. The claims folder must be made available for review in connection with this examination. The examiner should provide a complete rationale for all conclusions reached. 5. After completing the above and any additional development deemed necessary, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case that addresses all relevant actions taken on the claim for benefits. The Veteran should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further review. 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.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs