Citation Nr: 0518194 Decision Date: 07/05/05 Archive Date: 07/14/05 DOCKET NO. 97-32 056A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a compensable rating, on appeal from the initial award of service connection for residuals of a fracture of the nose. 2. Entitlement to a compensable rating, on appeal from the initial award of service connection for residuals of fractures of the mandible and right jaw. 3. Entitlement to a compensable rating, on appeal from the initial award of service connection for bilateral impaired hearing. 4. Entitlement to a compensable rating, on appeal from the initial award of service connection for residuals of removal of ganglion cyst, right dorsal wrist. 5. Entitlement to a compensable rating, on appeal from the initial award of service connection for residuals of removal of macule, right eye, and bilateral pterygium. 6. Entitlement to a compensable rating, on appeal from the initial award of service connection for right ankle sprain. 7. Entitlement to a compensable rating, on appeal from the initial award of service connection for left ankle sprain. 8. Entitlement to a rating in excess of 10 percent, on appeal from the initial award of service connection for frostbite, fingers of right hand. 9. Entitlement to a rating in excess of 10 percent, on appeal from the initial award of service connection for low back strain. 10. Entitlement to a rating in excess of 10 percent, on appeal from the initial award of service connection for melasma, bilateral cheek. 11. Entitlement to a rating in excess of 10 percent, on appeal from the initial award of service connection for keloid of the chest. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W.L. Pine, Counsel INTRODUCTION The veteran had active service from June 1975 to August 1996. This appeal is from a November 1996 rating decision of the Department of Veterans Affairs (VA) Waco, Texas, Regional Office (RO), serving as agency of original jurisdiction (AOJ) in this case. The original rating decision adjudicated 13 issues. The veteran responded to a November 1996 notice of the decision with a December 1996 statement styled as a notice of disagreement (NOD) expressing general disagreement with the rating decision. It did not identify specific determinations with which the veteran disagreed. The AOJ rejected the statement as an NOD for lack of specificity, and in a December 1996 letter, advised the veteran to identify the issues with which he disagreed. The veteran's response of March 1997 identified issues 1, 2, 6, 7, 8, and 12 of the 13 enumerated issues. In October 1997, the AOJ issued a statement of the case (SOC) addressing all 13 issues. In November 1997, the veteran perfected his appeal as to the 11 issues addressed in this decision. The Board of Veterans' Appeals (Board) is uncertain of the AOJ's rationale for rejecting the initial general NOD, then disregarding the requested specific NOD to issue an SOC responsive to the initial NOD. During the eight years his appeal has been pending, VA has performed as if it construed the December 1996 NOD as pertaining to all 13 issues in the November 1996 rating decision. It construed the substantive appeal as valid as to 11 of those. The Board construes the December 1996 NOD as sufficient as to the issues listed above and deems them within the Board's jurisdiction. The veteran has mentioned tinnitus in several audiometry examinations. He told the May 1998 spine examiner that it started after noise exposure in service. He told the July 2004 VA examiner that he thinks the humming noise started after he had a seizure, which was after his retirement from service. The matter is referred to the AOJ to ascertain whether the veteran wishes to claim entitlement to service connection for tinnitus. The veteran is service-connected for lumbar strain. A lumbar x ray study in service revealed narrowing of the L5-S1 intervertebral space and a private physician made a similar x ray finding in May 2003, diagnosing degenerative disc disease and possible radiculopathy. This evidence reasonably raises a claim for service connection for degenerative disc disease with intervertebral disc syndrome. The matter is referred to the AOJ to ascertain whether the veteran wishes to claim entitlement to service connection for degenerative disc disease with intervertebral disc syndrome. The issues of higher initial rating for melasma, bilateral cheek, and keloid of the chest are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The veteran's fractured nose is asymptomatic and causes no obstruction in breathing. 2. The veteran had no reduction in inter-incisal range of motion prior to May 4, 2004, on which date he had 35 millimeters of inter-incisal range of motion. 3. The veteran has bilaterally impaired hearing with measurements of average puretone thresholds during the period from June 1996 to July 2004 in the range 19 decibels to 55 decibels for the right ear and 55 decibels to 65 decibels in the left ear, with speech discrimination in the range 100 percent to 92 percent in the right ear and 92 percent to 68 percent in the left ear, with no set of measurements showing a puretone threshold at 55 decibels or higher for all four averaged frequencies, and no set of measurement showing a puretone threshold of 30 decibels or less at 1000 Hertz with a simultaneous puretone threshold of 70 decibels or more at 2000 Hertz. 4. The veteran has full range of motion of the right wrist, and other complaints of pain and weakness are unrelated to the service-connected excision of a ganglion cyst from the dorsum of the right wrist. 5. Neither the removal of a macule from the right eye, nor the pterygium of the right eye, nor the pterygium or pinguecula (variously diagnosed) of the left eye has impaired the veteran's vision in any way. 6. The veteran is without objective residual signs or functional impairment of a right ankle sprain. 7. The veteran is without objective residual signs or functional impairment of a left ankle sprain. 8. The veteran suffers seasonal cold sensitivity and numbness of fingers of the right hand without tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or x ray abnormalities. 9. The veteran has chronic low back pain without muscle spasm, with slight limitation of motion, with all of multiple measurements of range of motion revealing painless flexion to 90 degrees or more or the sum of ranges of flexion, extension, lateral flexion bilaterally and rotation bilaterally greater than 120 degrees, with affirmative finding of no intervertebral disc syndrome on June 2004 examination. CONCLUSIONS OF LAW 1. The schedular criteria for a compensable rating for residuals of a fracture of the nose were not met on the effective date of service connection and have not since been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.97 Diagnostic Code 6599-6502 (2004). 2. The schedular criteria for a compensable rating for residuals of fractures of the left mandible and right jaw area were not met from the effective date of service connection until May 4, 2004. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.150, Diagnostic Code 9999-9904, 9905 (2004). 3. The schedular criteria for a compensable rating for residuals of fractures of the left mandible and right jaw area were met on May 4, 2004. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.150, Diagnostic Code 9999-9905 (2004). 4. The schedular criteria for a compensable rating for bilateral impaired hearing were not met on the effective date of service connection and have not since been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.85, 4.86, Diagnostic Code 6100 (2004). 5. The schedular criteria for a compensable rating for residuals of removal of a ganglion cyst from the dorsum of the right wrist were not met on the effective date of service connection and have not since been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.71a, 4.118, Diagnostic Code 7819- 5215 (2004). 6. The schedular criteria for a compensable rating for residuals of removal of a macule, right eye and bilateral pterygium were not met on the effective date of service connection and have not since been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.84a, Diagnostic Code 6015-6034 (2004). 7. The schedular criteria for a compensable rating for a right ankle sprain were not met on the effective date of service connection and have not since been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2004). 8. The schedular criteria for a compensable rating for a left ankle sprain were not met on the effective date of service connection and have not since been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2004). 9. The schedular criteria for a rating in excess of 10 percent for residuals of frostbite of fingers of the right hand were not met on the effective date of service connection and have not since been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 7122 (2004). 10. The schedular criteria for a rating in excess of 10 percent for lumbar strain were not met on the effective date of service connection and have not since been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. 4.71a, Diagnostic Code § 5295 (1996); 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This appeal is from the initial rating assigned upon awarding service connection. The entire body of evidence is for equal consideration. Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged." Fenderson v. West, 12 Vet. App. 119 (1999); cf. Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (where an increased rating is at issue, the present level of the disability is the primary concern). The RO did not consider staged ratings. Before the Board may execute a staged rating of the appellant's disability, it must be determined that there is no prejudice to the appellant to do so without remand to the RO for that purpose. Bernard v. Brown, 4 Vet. App. 384, 389 (1993). Under the facts of this case, the appellant is not prejudiced by the Board's consideration of staged ratings. The RO has executed multiple ratings during the long history of this appeal, considering evidence as it entered the record. The appellant has argued the merits of the claim coincident with various submissions of evidence and subsequent rating decisions. A staged rating under Fenderson, 12 Vet. App. 119, is little different. Therefore, the appellant suffers no deprivation of due process in the Board's action. In review of disability ratings, the Board considers all of the medical evidence of record, including the appellant's relevant medical history. 38 C.F.R. § 4.1 (2004); Peyton v. Derwinski, 1 Vet. App. 282, 285 (1991); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The medical findings are compared to the criteria in the VA Schedule for Rating Disabilities, 38 C.F.R. Part 4 (2004), to determine the extent to which a service-connected disability adversely affects the ability of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. §§ 4.2, 4.10 (2004). The veteran applied for service connection for the disabilities concerned in this decision the month after he retired from active service. The initial ratings were based on service medical records with the first VA examination in May 1998. For completeness in review of the appeal from the initial rating, the Board has reviewed service medical records for the purpose of ascertaining the level of disability at separation. I. Residuals of a Fracture of the Nose The veteran's disability is not specifically listed in the VA Rating Schedule, and so is rated by analogy to traumatic deviation of the septum. 38 C.F.R. §§ 4.20, 4.27, 4.97, Diagnostic Code 6502. A deviated septum is compensated 10 percent if there is a 50 percent obstruction of each nasal passage or a 100 percent obstruction of one nasal passage. The veteran has not presented with such a degree, or nearly such a degree, 38 C.F.R. § 4.7 (2004), of obstruction of either or both nasal passages at any time pertinent to this appeal. A contemporaneous x ray study of December 1983 showed the fracture and no deviation of the septum. Service medical records for over a year prior to separation are without complaint or notation of difficulty breathing or obstruction of nasal passages. The veteran's fracture of the nose was found not to interfere with his breathing on VA examination in May 1998 and on VA examination in May 2004. There is possibly some discrepancy in the record whether the veteran has a deviated septum. The May 1998 VA examination found none and an August 2000 VA examination noted nasal deviation to the left. No examiner has reported obstruction of breathing. For these reasons, the Board finds that the symptoms associated with the appellant's residuals of a fracture of the nose must fail. His symptoms to not fall within those required in the code for a compensable evaluation. The veteran testified in March 1998 that after exercise, his right nostril drains for about 45 minutes and then feels obstructed and he experiences smelling the odor of almonds, which irritates his eyes. The veteran testified that his physician told him he would smell things others do not for his entire life. The veteran's testimony is not corroborated by any notation of such post-exercise obstruction, although the record contains treatment records from multiple specialists, including specialists who treated him after a post-service brain infarction and onset of a seizure disorder, nor is the veteran's report of olfactory phenomena reported in the medical record. The Board need not find as to the credibility of the veteran's testimony on this point, because even if true in all respects, it is not evidence of the type of morphological obstruction of his nasal passages required for a compensable rating, nor are spurious olfactory phenomena an element of his service-connected residuals of a fracture of the nose. The clear preponderance of the evidence is that VA correctly rated the veteran's fracture of the nose noncompensably disabling initially and thereafter. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.97, Diagnostic Code 6502. II. Residuals of Fractures of the Left Mandible and Right Jaw The veteran's service medical records do not show any complaints or residuals of fractures of the left mandible and right jaw for more than a year prior to his retirement. X ray studies of August 1978, at the time of the veteran's first jaw fractures, showed asymmetry of the temporomandibular joints with one millimeter joint space on the left in the closed position versus three millimeters joint space on the right in closed position, but no other bone abnormality. VA initially rated the veteran's disability by analogy, 38 C.F.R. § 4.20 (2004), to malunion of the mandible. 38 C.F.R. § 4.150, Diagnostic Code 9904. Malunion of the mandible is rated 0, 10, or 20 percent disabling depending on the amount of displacement of the malunited mandible and the degree of motion of the mandible and loss of masticatory function. The service medical records and VA examination and treatment records from June 1998 to May 2004 show no displacement of the mandible and no loss of masticatory function. There are contradictory medical findings about bone loss of the maxilla and mandibles. The June 1998 VA examiner reported moderate generalized bone loss of the maxilla and mandible. The May 2004 VA examiner reported there is no bone loss found on x-ray. This is the more probative finding, because the June 1998 report did not note any x-ray or otherwise identify the objective basis of the finding, and the July 2004 report referenced x-ray studies. The latter finding is also consistent with the August 1978 x ray in service. The May 2004 study also revealed no displacement of the condyles or residual evidence of nonunion of the mandibular fracture. The veteran repeatedly reported some popping or other discomfort in the temporomandibular joint on the right, which the May 1998 examiner felt was probably due to the prior fracture. This finding is not compensable under any diagnostic code for the maxilla or mandible. See 38 C.F.R. § 4.150 (1996); see also 38 C.F.R. § 4.150 (2004). Impairment of the temporomandibular articulation is rated based on limitation of inter-incisal range of motion. VA examinations in January 2003 found full range of inter- incisal range of motion and of lateral and protrusive excursion of the jaw. On VA examination on May 19, 2004, the examiner found a slight decrease in maxillary opening and left temporomandibular joint clicking with pain. The inter- incisal range was restricted to 35 millimeters. The veteran's TMJ complaints would be compensable if the pain resulted in loss of inter-incisal range of motion. Diagnostic Code 9405. There is no evidence of such loss prior to May 19, 2004. The finding of 35 millimeters of inter-incisal range at that examination comports with a 10 percent rating by analogy to limitation of the TMJ articulation. Id. The effective date is the date of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (2004). This case, as the Court has distinguished, is not a claim for increased rating. Fenderson, 12 Vet. App. 119. Consequently the rule does not apply that provides that the effective date of an increase in compensation based on an increase in disability is the earliest date it is factually ascertainable if the claim is filed within one year from the increase in disability, otherwise the date of the claim. See 38 C.F.R. § 3.400(o)(2) (2004). This staging of the rating is not in response to a claim of an increase in disability, but rather in response to a disagreement with the initial rating. In this context, the general rule of effective dates controls. Effective dates of compensation ratings are in accordance with the facts found. 38 C.F.R. § 3.400(a) (2004). III. Impaired Hearing Compensation ratings for impaired hearing are derived from the application in sequence of two tables. See 38 C.F.R. § 4.85(h), Table VI or VIa and Table VII (2004). Table VI correlates the average pure tone threshold, measured in decibels (dB) (the sum of the 1000, 2000, 3000, and 4000- Hertz (Hz) thresholds divided by four) with the ability to discriminate speech (based one use of the Maryland CNC word list to determine speech discrimination), providing a Roman numeral to represent the correlation. Each Roman numeral corresponds to a range of thresholds (in decibels) and of speech discriminations (in percentages). If the veteran cannot accomplish the speech discrimination because of a language impediment or certain other exceptional characteristics of his or her hearing, see 38 C.F.R. § 4.86 (2004), table VIa is used, producing a roman numberal based on pure tone threshold only. The table is applied separately for each ear to derive the values used in Table VII. Table VII prescribes the disability rating based on the relationship between the values for each ear derived from Table VI or VIa. See 38 C.F.R. § 4.85 (2004). When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a) (2004). Additionally, when the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b) (2004). The veteran testified at his March 1998 hearing that his hearing loss has become more severe since his retirement from service. The audiometry reports of June 1996, May 1998, November 2002, February 2003, and July 2004 confirm a trending of increasingly impaired hearing. The veteran's testimony that he perceives his hearing as worsening is credible. Unfortunately, the purely formulaic manner in which VA evaluates hearing loss requires that there be changes in impairment of defined increments to make a difference in the amount of compensation awarded. The rating schedule shows, by use of discrete values, that it does not adjust compensation on a continuous scale, but in discrete increments. The rating of impaired hearing, governed by these formulas and tables, is not amenable to an award of the next higher rating based on near approximation of the criteria for the next higher rating. See 38 C.F.R. § 4.7 (2004). To do so would render the halfway point between the increments provided by regulation the true dividing point between ratings and render the regulation impracticable to administer. Performing the arithmetic calculations on the puretone threshold data from each of the hearing tests performed, taking each average puretone threshold, and factoring in the speech recognition performance from each hearing test results in a noncompensable rating when table VII is applied to the data from each test in turn. None of the data obtained from any of the tests meet the criteria for electing between the use of Table VI and Table VIa. 38 C.F.R. § 4.86 (2004). In short, the veteran had noncompensably impaired hearing bilaterally on the effective date of service connection, and he has had noncompensably impaired hearing bilateral continuously thereafter. IV. Residuals of Excision of Right Wrist Ganglion Cyst In service, the veteran underwent surgical excision of a ganglion cyst from the dorsum of the right wrist. The AOJ granted service connection and rated the disability noncompensably disabling because there was no limitation of motion of the wrist. Ganglion cyst is not listed in the VA Rating Schedule. The AOJ identified it as analogous to a neoplasm of the skin, 38 C.F.R. § 4.118, Diagnostic Code 7819, and rated it for the effect on the part involved based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5215. When an unlisted condition is rated, the diagnostic code is built up of two numbers identifying the body part or system with the last two numbers "99" assigned. 38 C.F.R. § 4.27 (2004). When a disease is rated based on a residual condition, the diagnostic code identifying the disease is listed first, followed after a hyphen by the diagnostic code for the residual impairment. Id. In this case, the ganglion cyst is a new, nonmalignant growth, or neoplasm, and, post- excision, the condition is rated for any residual impairment. The correct coding of the disability is 7819-5215. Limitation of motion of the wrist is rated 10 percent disabling if dorsiflexion is less than 15 degrees or if palmar flexion is limited in line with the forearm. 38 C.F.R. § 4.71a, Diagnostic Code 5215 (2004). Service medical records show no complaints about the wrist for more than two years prior to the veteran's retirement from service. VA outpatient treatment records of January 2000 show the veteran complained of right wrist pain. He reported that he worked for the post office and "threw mail" for long periods of time. Examination was negative. Electrodiagnostic testing of January 2000 was negative for carpal tunnel syndrome. Subsequent VA outpatient records of August 2001 and April 2002 show the veteran seeking treatment for right wrist pain. Findings on examination are repeatedly essentially normal. An August 2001 x ray study of the wrist was normal. There was an impression at that time of DeQuervain's tenosynovitis. On VA compensation examination of February 2003, the examiner reported review of the veteran's claims file, noting removal of the right dorsum ganglion cyst in service. The veteran complained of volar pain when picking up objects, which the examiner opined seemed unrelated to removal of the cyst, occasional weakness, and occasional sounds in the wrist with motion. The examiner found full range of motion and diagnosed musculoskeletal sprain unrelated to removal of the cyst. VA compensation examination of June 2004 essentially noted the same complaints and found full range of motion and no objective impairment of the wrist. Taking the veteran's reports of pain, weakness, and other symptoms as credible, the residuals of removal of the ganglion cyst must be rated noncompensably disabling, because he has full range of motion and his complaint were found medically unrelated by an informed, uncontradicted medical opinion. The preponderance of the evidence is against awarding a compensable rating for residuals of the removal of a ganglion cyst from the dorsum of the right wrist for any period currently under review. V. Macule and Pterygium of the Right Eye and Pterygium of the Left Eye The veteran had a macule removed from his right eye in service. He has a pterygium of the right eye. Examinations from March 1996 in service to June 2004 by VA variously reported the dimension as between 1 mm. and1.5 mm. The left eye has a small structure at the nasal aspect variously called a pterygium in a service eye examination of August 1994 and on VA examination in January 2003 and a pinguecula on VA examination of June 2004. The veteran has a refractive error of the eyes, which by consensus of all examination reports of record is correctable 20/20 with spectacles. (As an aside, refractive error of the eye is not a disability for VA compensation purposes and may not be service-connected. 38 C.F.R. § 3.303(c).) A macule is rated as a new growth, based on the visual impairment it causes, unless it is healed, when it is rated based on the residuals. 38 C.F.R. § 4.84a, Diagnostic Code 6015 (2004). The veteran's macule, post-removal, is rated on residuals. The pterygia are rated on loss of vision, if any. 38 C.F.R. § 4.84a, Diagnostic Code 6034 (2004). The veteran testified in March 1998 and told a VA examiner in January 2003 that his eyes get red and irritated occasionally. This condition, assuming for discussion it is attributable to his service-connected condition, does not amount to a compensable disability. The veteran suffers no loss of or other impairment of vision attributable to post- operative macula of the left eye or to pterygia. The initial noncompensable rating is shown correct by a preponderance of the evidence, and a preponderance of the evidence shows it is correctly rated noncompensable thereafter. VI. Ankles The veteran's ankles are rated separately. They are by conveniently discussed together, because the evidence of record uniformly shows no difference in their pathology to warrant separate discussion. The veteran's ankle sprains are unlisted conditions, 38 C.F.R. § 4.27 (2004), rated based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2004). Moderate limitation of motion is rated 10 percent disabling. Marked limitation of motion is rated 20 percent disabling. Less than moderate limitation of motion is rated noncompensably disabling, because any condition that does not manifest a compensable degree of impairment is rated 0 percent. 38 C.F.R. § 4.31 (2004). There is no mention of the veteran's ankles in the service medical records for two years prior to his retirement. He testified in March 1998 that his ankle gives way and that he needs to sit for five to 10 minutes occasionally during the day because his ankles ache and it becomes painful to walk. He reported that he had no swelling of the ankles or limitation of motion. VA examination in May 1998, February 2003, and June 2004 shows the veteran's ankles without any residual disability. A May 1998 x-ray study was negative. Ranges of motion were full on each examination. In February 2003 the veteran reported having no residual disability, no pain, no laxity, no redness, no swelling, no need for braces, no complaints of any kind, and he had not sought treatment for either ankle. The June 2004 examiner noted the veteran's denial of any complaints about his ankles or any assertion of disability due to them. The objective evidence outweighs the veteran's March 1998 testimony as a basis for rating his ankle disabilities. Even crediting the accuracy of the veteran's March 1998 report of occasional pain, 38 C.F.R. § 4.40, 4.45 (2004), the clear preponderance of the evidence is that neither ankle has a compensable disability. VII. Residuals of Frost Bite of the Fingers of the Right Hand Service medical records show a diagnosis of frostbite of the right index finger and thumb in January 1987. There was no complaint or finding of residuals of frostbite during the two years prior to the veteran's retirement from service. The veteran testified in March 1998 that he has cold sensitivity in his right index finger and thumb. He testified that the fingers turn very red and ache and peal constantly in the winter, and he has no feeling in the fingertips at that time. VA examination in May 1998 and in February 2003 found his right hand normal and without residuals of frostbite. The May 1998 examiner's impression was that frostbite had resolved without problem. The February 2003 examiner's impression, based on the veteran's report, was minimal cold injury residuals of he volar surface of the fingertips of the right hand. VA and private medical treatment records from January 1999 to March 2004 are devoid of any notation of treatment or even complaint regarding the fingers of the right hand. Cold injury (frostbite) is rated 10 percent for arthralgia or other pain, numbness or cold sensitivity. For a 20 percent rating, in addition to any of those symptoms, there must be tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhydrosis, or x ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis). The pealing of the fingers is undocumented despite a wintertime VA examination and full opportunity to call attention to such a condition on the several visits to VA primary care clinic documented in the claims file. Likewise, none of the other criteria of a rating in excess of the initial and current 10 percent is demonstrated by objective evidence. No criterion of a rating greater than 20 percent is in evidence. The preponderance of the evidence is that the veteran was correctly rated 10 percent disabled by residuals of frostbite initially, and that 10 percent has remained the correct rating since. VIII. Lumbar Strain The veteran is service connected for lumbar strain. The veteran is not service-connected for degenerative disc disease. See Introduction, supra. There is no diagnosis of arthritis of the lumbar spine. He had complains of radiation to the right lower extremity in May 2003, felt on private examination showing degenerative disc disease at L5-S1 by x ray study possibly to be radiculopathy. A Dr. Mayer followed the veteran in June and August 2003. In June 2003, Dr. Mayer found a slightly decreased intervertebral disc space between L5 and S1 consistent with and unchanged from that shown in a 2000 x ray study. The veteran was tender to palpation at the sciatic notch, but the spine was otherwise normal. In August 2003, Dr. Mayer found the sciatica resolved. The single episode of sciatica from May to August 2003 without prior or subsequent complaints or findings is not shown to have been attributable to the service-connected lumbar strain. It does not represent a basis to stage the rating for those four months. VA amended the regulations governing rating of spine disorders during the pendency of this appeal. Compare 38 C.F.R. § 4.71a, Diagnostic Code 5295 (1996) with 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2004) (effective Sep. 26, 2003). The changes in the rating criteria do not affect the veteran's disability rating in this case. Under either set of rating criteria, the objective manifestations of his lumbar strain show a noncompensable limitation of motion with a compensable rating warranted because of the veteran's credible reports of fatigue related to pain. See 38 C.F.R. §§ 4.40, 4.45 (2004). The salient feature of the evidence of record is the clinically consistent findings regarding the function of the veteran's low back. In service in March 1996, the veteran had mild tenderness of the low back with increased pain with right leg raising; neurologic findings were nonfocal, i.e., not shown physiologically related to pathology at an identifiable location. The veteran was felt to have mechanical low back pain, i.e., pain related to the way he moved his back. The veteran testified in March 1998 that his low back had become worse since his retirement from service. He reported inability to stand upright in the morning. He reported a reduction in flexion and increased muscle spasms. VA examination in May 1998, private examination in December 2000, VA examination in February 2003, and VA examination of June 2004 all show flexion of 90 degrees or greater on all reports except for June 2004,when flexion was to 80 degrees, extension of 30 degrees or greater, lateral flexion of 20 degrees or greater, and rotation of 30 degrees or better. Under the older rating criteria, these ranges of motion are less than slight to a noncompensable degree, 38 C.F.R. § 4.71a, Diagnostic Code 5292 (1996). Applying the newer rating criteria, all examinations in which the ranges of motion were measured for flexion, extension, lateral flexion bilaterally, and rotation bilaterally documented ranges that sum to greater than 235 degree with or without pain, which is also noncompensable. 38 C.F.R. § 4.71a, General Formula for Rating Diseases and Injuries of the Spine, Diagnostic Code 5237 (2004). Except for the veteran's episode of sciatica from May to August 2003, there are negative neurologic findings, and only occasional findings of midline or muscle tenderness. There is no report of frank muscle spasm in VA or private examination or treatment records. The veteran's June 2004 subjective complaints on VA examination well typify his complaints and impairments throughout the record. He said his back felt tight and stiff with a dull ache. He stated that he had chronic low back pain of about 6 on a scale of 1 to 10 (10 maximum). He reported that he had increased pain about once a week with any increase in strenuous activity or heavy lifting, increased bending, or prolonged sitting. No examiner reported painful motion. The objective findings were predominantly of muscle pain. VA regulations throughout the pendency of the veteran's appeal have required that disability ratings be based on objective evidence of subjective symptomatology. See 38 C.F.R. §§ 4.2, 4.40, 4.45, 4.59 (1996-2004). Thus, the veteran's testimony and complaint of pain must be placed in context of the pathology revealed on examination and objective evidence of the impairment resulting from the veteran's reported low back pain. There are enough objective VA and private medical reports of tenderness to justify the 10 percent rating in effect under either the older rating criteria for lumbar strain, 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Code 5295 (1996), or the newer rating criteria. 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2004), when the credible reports and findings of tenderness are considered. The veteran had been correctly rated from the effective date of service connection to the present as 10 percent disabled by lumbar strain. The preponderance of the evidence is against a higher rating for any part of the time under review. IX. Duty to Notify and to Assist Finally, in a letter of June 2003, VA discharged its obligation under the Veterans Claims Assistance Act of 2000 (VCAA) to notify the veteran of the information and evidence necessary to substantiate his claim and of his and VA's respective obligations to produce or obtain such information and evidence. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2004). This notice unavoidably post- dated the initial adjudication of the ratings subject to appellate review, because that rating pre-dated the VCAA. However, the veteran's produced additional evidence in response to the notice, and VA readjudicated the claims at issue prior to transferring the case for appellate review. These actions essentially cured the error in the timing of notice. The Board's review at this time does not prejudice the veteran's claim. VA obtained all evidence pertinent to the issues decided in this appeal of which it had notice, examined the veteran multiple times, including recently, to ensure contemporaneous information responsive to changes in rating criteria. VA did not fail to obtain any evidence. VA has discharged its duty to assist the veteran to obtain evidence in his case. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2004). ORDER Compensable ratings initially or for any period thereafter for residuals of a fracture of the nose; bilateral impaired hearing; residuals of removal of ganglion cyst, dorsum right wrist; residuals of removal of a macule, right eye, and bilateral pterygium; right ankle sprain; and left ankle sprain are denied. A compensable rating for residuals of fractures of the left mandible and right jaw areas is denied prior to May 19, 2004. A 10 percent rating for residuals of fractures of the left mandible and right jaw areas is granted from May 19, 2004, subject to the regulations governing monetary benefits. Ratings in excess of 10 percent initially or for any period thereafter for frostbite, fingers of the right hand, and for low back strain are denied. REMAND Two VA compensation examination reports on the veteran's melasma, February 2003 and June 2004, have advised to see the color photographs. None are in the claims file. The veteran's appearance is a criterion for rating the disability. Despite the addition of objectifying guidance in the rating criteria for skin conditions of the face, evaluating appearance retains an element of subjectivity, and it would assist the Board to decide the veteran's appeal to see color photographs. The veteran has stated repeatedly that his keloid of the chest becomes pruritic at approximately six-month intervals. See Feb. 2003 VA examination report. A July 2000 treatment record from King's Daughters Clinic received in October 2003 noted the veteran's report of past treatment at Scott & White Hospital. The veteran has not authorized VA to obtain records from that facility, although VA notified him in June 2003 of his obligation to inform VA of the locations of treatment for the disabilities for which he seeks a higher rating. Given that the records in question predate the notice letter by several years, the AOJ can assist the veteran in this matter to the extent of explicitly requesting authorization to obtain records from Scott & White Hospital. Accordingly, the case is REMANDED for the following action: 1. Request the veteran to authorize VA to obtain all records from Scott & White Hospital pertaining to examination or treatment of the keloid on his chest, and obtain those records. Advise the veteran that he has a regulatory obligation to cooperate with VA's efforts to assist him with his claim for a higher rating for his keloid. 2. Obtain the color photographs of the veteran's melasma referenced in the VA skin examination reports of February 2003 and June 2004, and Associate any information obtained with the claims file. 3. If and only if the color photographs referenced in the February 2003 or June 2004 examination report cannot be associated with the claims file, schedule the veteran for a dermatology examination to document the course and status of the veteran's melasma by clinical interview, current examination, and unretouched color photographs, which are to be submitted to the AOJ with the examination report. Provide the examiner with the claims file for review in conjunction with the examination. 4. Readjudicate the claims for a higher initial rating for melasma and for keloid of the chest. If either claim remains denied, provide the appellant and his representative an appropriate supplemental statement of the case and an appropriate period to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The appellant need take no further action until he is further informed. The purpose of this REMAND is to obtain additional information and to afford due process. No inference should be drawn regarding the final disposition of the claim because of this action. 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 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). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs