Citation Nr: 0809804 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 05-03 394A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a bilateral hip disability. 2. Entitlement to service connection for a bilateral knee disability. 3. Entitlement to service connection for a right ankle disability. 4. Entitlement to an initial rating higher than 30 percent for cervical spine degenerative disc disease with spondylosis. 5. Entitlement to an initial rating higher than 40 percent for lumbar spine degenerative changes. 6. Entitlement to an initial rating higher than 10 percent for left shoulder impingement, decompression, clavicle resection, and acromioclavicular arthritis. 7. Entitlement to an initial rating higher 10 percent than for chronic heart palpitations. 8. Entitlement to an initial rating higher 10 percent than for headaches. 9. Entitlement to an initial compensable rating for bilateral hearing loss disability. WITNESS AT HEARINGS ON APPEAL The veteran ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The veteran had active military service from August 1967 to August 1970 and from February 1972 to May 1989. This appeal comes to the Board of Veterans' Appeals (Board) from June 2003 and later rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In pertinent part of a May 2003 rating decision, the RO denied service connection for bilateral hip disability, bilateral knee disability, and a right ankle disability. In pertinent part of a February 2005-issued rating decision, the RO granted service connection for cervical spine degenerative disc disease with spondylosis (10 percent); for lumbar spine degenerative changes (10 percent); for left shoulder impingement, decompression, clavicle resection, and acromioclavicular arthritis (10 percent); for chronic heart palpitations (10 percent); and for bilateral hearing loss disability (noncompensable), each effective from August 30, 2002. The veteran seeks higher initial ratings for these disabilities. The February 2005 rating decision also granted service connection and assigned a 10 percent rating for tinnitus. The veteran submitted a notice of disagreement (NOD) and the RO issued a statement of the case (SOC) that addressed several other issues and informed the veteran that 10 percent is the maximum rating for tinnitus. The veteran then submitted a substantive appeal, specifically indicating a desire to appeal all disabilities that had not been granted the maximum rating. Because the maximum rating had been assigned for tinnitus for the entire appeal period and because the veteran desires not to appeal that rating, the Board deems the appeal for a higher rating for tinnitus to be withdrawn. The veteran submitted a notice of disagreement (NOD) to an August 2006 rating decision that denied service connection for posttraumatic stress disorder (PTSD) and denied entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU). In December 2006, he withdrew his NOD with respect to PTSD and in January 2007, the RO granted TDIU. Thus, these issues are not before the Board. In a January 2007-issued rating decision, the RO granted a 30 percent rating for the cervical spine effective from August 30, 2002, and a 40 percent rating for the lumbar spine effective from August 30, 2002; however, the veteran has continued his appeal for higher ratings. A claim remains in controversy where less than the maximum schedular benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). Although the veteran submitted a notice of disagreement (NOD) to a January 2007 rating decision that granted service connection and assigned a 10 percent rating for headaches, no SOC has been issued addressing this issue and the veteran has not withdrawn his NOD. Thus, a remand is necessary. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Service connection for bilateral hip disability and bilateral knee disability, and the propriety of an initial 10 percent rating for headaches are addressed in the REMAND portion of the decision below and are REMANDED to the agency of original jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. There is no competent evidence of a current right ankle disability related to active service. 2. Throughout the appeal period, cervical spine degenerative disc disease with spondylosis has been manifested by severe intervertebral disc syndrome, moderate cervical spine limitation of motion with additional functional impairment due to painful motion, and neurologic symptoms consistent with mild incomplete paralysis of the median nerve, bilaterally. 3. Throughout the appeal period, lumbar spine degenerative disc disease has been manifested by severe lumbar spine limitation of motion; radiculopathy is not shown. 4. Throughout the appeal period, the left shoulder disability has been manifested by X-ray evidence of arthritis and complaints of pain on motion; additional functional impairment due to weakness or fatigue is not shown. 5. Throughout the appeal period, an exercise stress test has been medically contra-indicated. 6. The veteran's metabolic equivalents (METS) are estimated to be 3 to 5, his cardiac disability precludes more than light work, his left ventricle ejection fraction is greater than 50 percent, and continuous medication is required to control arrhythmia. 7. At no time during the appeal period has the veteran's bilateral hearing loss been worse than Level III in the right ear and Level II in the left ear. CONCLUSIONS OF LAW 1. A right ankle disability was not incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). 2. For the period prior to September 23, 2002, the criteria for a 40 percent schedular rating for severe cervical intervertebral disc syndrome are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp.2007); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, Plate V, § 4.71a, Diagnostic Codes 5290, 5293 (2003). 3. From September 23, 2002, the criteria for a 30 percent schedular rating for severe limitation of motion of the cervical spine and the criteria for separate 10 percent ratings for median neuropathy of each upper extremity are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp.2007); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, Plate V, § 4.71a, Diagnostic Codes 5242, 5243, §§ 4.123, 4.124a, Diagnostic Code 8515 (2007). 4. Throughout the appeal period, the criteria for a schedular rating greater than 40 for severe limitation of motion of the lumbar spine are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp.2007); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, Plate V, § 4.71a, Diagnostic Code 5292 (2003); § 4.71a Diagnostic Codes 5242, 5243 (2007). 5. Throughout the appeal period, the criteria for a schedular rating greater than 10 for left shoulder impingement, decompression, clavicle resection, and arthritis are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp.2007); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, Plate I, § 4.71a, Diagnostic Code 5003, 5010, 5201, 5202, 5203, 38 C.F.R. § 4.124a, Diagnostic Code 8516 (2007). 6. Throughout the appeal period, the criteria for a 60 percent initial schedular rating for heart palpitations are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp.2007); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.100, 4.104, Diagnostic Code 7011 (2007). 7. Throughout the appeal period, the criteria for an initial compensable rating for bilateral sensorineural hearing loss disability are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp.2007); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.85, 4.86, 4.87, Diagnostic Code 6100 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As set forth at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007), and at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007), VA has a duty to notify and to assist claimants in substantiating a claim for VA benefits. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must give notice to the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b) (1). The RO must provide this notice prior to an unfavorable decision. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). VA has attempted to satisfy its duty to notify the claimant of the information and any medical or lay evidence that is necessary to substantiate the claims by way of notices sent to the claimant in October 2002, March and April 2003, July and October 2005, February and April 2006, and in April 2007. These letters mention what evidence is required to substantiate the claims, the claimant's and VA's duty to obtain this evidence, and asks the claimant to submit evidence in his possession. VA provided the additional notices recommended by the United States Court of Appeals for Veterans Claims (Court) in Dingess v. Nicholson, 19 Vet. App. 473 (2006), in April 2006 and later letters. For an increased rating claim, § 5103(a) requires, at a minimum, that VA notify the claimant to provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, No. 05-0355, --- Vet. App. ---, 2008 WL 239951 (U.S. Vet. App. Jan. 30, 2008). If the diagnostic code under which the disability is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that should an increase in disability be found, a disability rating will be determined by applying diagnostic codes that provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. VA's notice letters must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation , e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Id, at*4. Regarding the initial evaluations addressed in this decision, the veteran is challenging the initial evaluation and effective date assigned following the grant of service connection. In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. The claimant has not identified, nor does the record indicate, that any additional evidence is necessary for adjudication of the claims. Hence, no further notice or assistance to the claimant is required to fulfill VA's duty to assist. 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). Adjudication may proceed without unfair prejudice to the claimant. Bernard v. Brown, 4 Vet. App. 384 (1993). Service Connection Service connection will be awarded for disability resulting from injury or disease incurred in or aggravated by active service (wartime or peacetime). 38 U.S.C.A. §§ 1110; 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) medical or, in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury; (2) medical evidence of current disability; and (3) medical evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). In Caluza, the Court also stressed that § 3.102 states, "The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident arose under combat, or similarly stressful conditions [emphasis added], and is consistent with the probable results of such known hardships." Caluza, 7 Vet. App. at 509. Each disabling condition shown by service medical records, or for which the veteran seeks service connection, must be considered on the basis of the places, types, and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. 38 C.F.R. § 3.303(a). "Direct" service connection may be granted for any disease not diagnosed initially until after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Once the evidence has been assembled, the Board assesses the credibility and weight to be given to the evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) and cases cited therein. When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2007). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that a veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. According to 38 U.S.C.A. § 1154(a), the Secretary must consider the places, types, and circumstances of the veteran's service, his unit's history, his service medical records, and all pertinent lay and medical evidence in the case. More favorable consideration is afforded combat veterans under 38 U.S.C.A. § 1154(b). Because the veteran was in combat, he will be afforded this consideration. Right Ankle The service medical records (SMRs) reflect treatment in January 1983 for a twisted right ankle incurred playing softball. A lateral malleolus strain was assessed. In his original service connection claim submitted in August 2002, the veteran reported that he received treatment for the ankles from January 1988 to the present; however, no relevant ankle treatment records have been submitted. According to an August 2004 VA orthopedic compensation examination report, the ankle was examined and X-rays were taken; however, no right ankle disability was found. The veteran testified before an RO hearing officer in July 2004 that the right ankle turns easily since the in-service injury. He testified before an RO hearing officer in May 2006 that right ankle pains were due to over 20 years of running and marching. The salient feature of this case is that no right ankle disability is shown by the competent evidence of record. The Court has specifically disallowed service connection where there is no present disability: "[c]ongress specifically limits entitlement for service connected disease or injury to cases where such incidents have resulted in a disability. . . . In the absence of proof of a present disability there can be no valid claim [for service connection]." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Although the veteran attributes his weak ankle to active service, this in itself is not shown to be disabling or to cause any impairment in earning capacity. Lay statements are competent evidence with regard to descriptions of symptoms of disease or disability or an injury, but when the determinative issue involves a question of medical diagnosis, as here, only individuals possessing specialized training and knowledge are competent to render an opinion. 38 C.F.R. § 3.159; Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); but see Jandrea v. Nicholson, 492 F.3d1372, 1377 (Fed.Cir. 2007) (lay diagnosis is competent if: (1) lay person is competent to identify the medical condition; (2) lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony of symptoms at the time supports a later diagnosis by a medical professional). In this case, the veteran's reported symptoms of ankle weakness remain unsupported by a diagnosis by a medical professional. After considering all the evidence of record, including the testimony, the Board finds that the preponderance of it is against the claim. 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 (West 2002); Gilbert, supra. Service connection for a right ankle disability is therefore denied. Disability Ratings Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2007). Diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. The entire medical history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). Different examiners, at different times, will not describe the same disability in the same language. Features which have persisted unchanged may be overlooked or a change for better or worse may not be accurately appreciated or described. It is the responsibility of the rating specialist to interpret examination reports in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the element of disability present. 38 C.F.R. § 4.2. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Evaluation of a disability includes consideration of the veteran's ability to engage in ordinary activities, including employment, and the effect of symptoms on functional abilities. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40 (2007). As regards the joints, the factors of disability reside in reductions of their normal excursions of movement in different planes. Inquiry will be directed to these considerations: (a) Less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon tie-up, contracted scars, etc.). (b) More movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.). (c) Weakened movement (due to muscle injury, disease, or injury of peripheral nerves, divided or lengthened tendons, etc.). (d) Excess fatigability. (e) Incoordination, impaired ability to execute skilled movements smoothly. (f) Pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are related considerations. For the purpose of rating disability from arthritis, the shoulder, elbow, wrist, hip, knee and ankle are considered major joints; multiple involvement of the interphalangeal, metacarpal and carpal joints of the upper extremities, the interphalangeal, metatarsal and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae, are considered groups of minor joints, ratable on a parity with major joints. The lumbosacral articulation and both sacroiliac joints are considered to be a group of minor joints, ratable on disturbance of lumbar spine functions. 38 C.F.R. § 4.45 (2007). 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 maligned 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 tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59 (2007). Where the veteran has appealed the initial rating assigned after service connection is established, the Board considers the initial rating from the initial effective date forward rather than treating the claim as one for an increased rating. Fenderson v. West, 12 Vet. App. 119, 126-7 (1999). A recent decision of the United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, staged ratings are necessary. Cervical Spine The RO has assigned an initial 30 percent rating for cervical spine degenerative disc disease with spondylosis under Diagnostic Code 5243-5242 for the entire appeal period, i.e., from August 30, 2002. Diagnostic Codes 5243 and 5242 were first published in the revised rating criteria that were issued by VA effective on September 26, 2003. The retroactive reach of a changed regulation can be no earlier than the effective date of that change. 38 U.S.C.A. 5110(g) (West 2002); VAOPGCPREC 3-2000. Therefore, Diagnostic Codes 5242 and 5243 cannot be applied to any portion of the appeal period before September 26, 2003, because they did not exist before then. The Board must therefore re-code the cervical spine disability under a diagnostic code or codes in effect on August 30, 2002. The potentially appropriate codes are Diagnostic Code 5290, Limitation of motion of the cervical spine, and Diagnostic Code 5293, Intervertebral disc syndrome. Limitation of motion of the cervical spine warrants a 10 percent rating if slight, a 20 percent rating if moderate, and a maximum of 30 percent when shown to be severe. 38 C.F.R. § 4.71a, Diagnostic Code 5290 (2003). Numerous VA outpatient treatment reports dated in 2002 note that the veteran wore a neck brace because of intense neck pain. Pain and the neck brace precluded obtaining ranges of motion of the cervical spine. Moreover, he reported bilateral hand numbness and lightheadedness when tilting the head. An October 2002 VA neurology report notes intervertebral disc disorder with myelopathy of the cervical region and cervical spondylosis. A December 2002 VA neurological report notes bilateral upper extremity numbness. An August 2004 VA orthopedic examination report, which does not mention use of a neck brace, indicates cervical spine range of motion to 40 degrees of flexion, to 30 degrees of extension, to 35 degrees of right and left lateral bending, and to 30 degrees of right and left rotation. No radiculopathy was elicited. A November 2005 VA outpatient treatment report notes that electromyography (EMG) and nerve conduction velocity study (NCV) showed bilateral median neuropathy. Bilateral neuroforaminal stenosis was shown at C4-7. A February 2006 VA orthopedic compensation examination report notes severe impact in functioning and in activities of daily living due to neck pains. Cervical spine range of motion was to 45 degrees of flexion, to 35 degrees of extension, to 40 degrees of right and left lateral bending. Motion caused pain. Range of motion in the rotational plane was not reported. Magnetic resonance imaging (MRI) showed extensive degenerative joint disease at all cervical levels, C-3, 5, and 6 disc-space bulging, and canal stenosis. The diagnosis was cervical spondylosis. A March 2006 VA neurology consultation report notes that the veteran wore a soft collar for neck pain. The neck appeared supple. Sensation was decreased in the hands. The assessments included median neuropathy. In May 2006, the veteran testified before an RO hearing office that he had not worked in the recent four years. He testified that his neck problem was worsening and that the pain was 10 on a scale of 10. He testified that he currently wore a brace and that all head movements were painful. He testified that both hands were numb, but more so on the left. A June 2006 VA neurology compensation examination report (for headaches) notes that the veteran was wearing a soft collar and would not turn his head more than 5 or 10 degrees, but when distracted he easily turned 30 degrees without overt discomfort. A July 2006 VA neurology compensation examination report is identical to the June 2006 VA neurology compensation examination report. Resolving the various reports into a consistent disability picture, as required by 38 C.F.R. § 4.2, and considering the tenets of DeLuca, supra, the Board finds that although actual range of motion of the cervical spine has generally been no worse than moderate (a June 2006 neurology report is an exception), because of additional impairment due to painful motion, the criteria of a 30 percent rating under Diagnostic Code 5290 are more nearly approximated. 30 percent is the maximum rating available under Diagnostic Code 5290. The next question is whether there is a basis for a rating higher than 30 percent under Diagnostic Code 5293, intervertebral disc syndrome. Under the rating criteria for intervertebral disc syndrome in effect prior to September 23, 2002, a 40 percent rating is warranted for severe intervertebral disc syndrome with recurring attacks with intermittent relief. A 60 percent evaluation is warranted for pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc with little intermittent relief. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (effective prior to September 23, 2002). An October 2002 VA neurology report notes intervertebral disc disorder with cervical myelopathy and spondylosis. A December 2002 VA neurology report notes bilateral upper extremity numbness. A February 2006 VA examination report notes severe impact in function and activities of daily living due to neck pains. However, these are not shown to be persistent symptoms. An August 2004 VA examination report notes no radiculopathy and the June 2006 VA neurology examiner felt that the symptoms were benign. Comparing the manifestations of cervical intervertebral disc syndrome to the rating criteria, it appears that intervertebral disc syndrome, although severe, does not more nearly approximate the criteria for a 60 percent rating. After considering all the evidence of record, including the testimony, the Board finds that the evidence favors a 40 percent rating for severe intervertebral disc syndrome for the entire appeal period. Next for consideration is whether later revisions warrant an even higher rating. Where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the veteran applies, absent congressional or Secretarial intent to the contrary. VA's General Counsel (GC) held that where a law or regulation changes during the pendency of a claim, the Board must determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C.A. 5110(g) (West 2002) can be no earlier than the effective date of that change. VA must apply the earlier version of the regulation for the period prior to the effective date of the change and may continue to apply it after the change, if favorable to the veteran. VAOPGCPREC 3- 2000. On September 23, 2002, the rating criteria for intervertebral disc syndrome changed. The maximum schedular rating available remained at 60 percent; however, it became based on duration of incapacitating episodes (defined as periods of doctor prescribed bed rest) over the past 12 months, rather than on pronounced intervertebral disc syndrome. See 38 C.F.R. § 4.71a, Diagnostic Code 5293 (effective September 23, 2002). Another new and significant provision provides that orthopedic and neurologic manifestations may be separately evaluated under appropriate codes and those evaluations may be used if they result in a greater benefit. See 38 C.F.R. § 4.71a, Diagnostic Code 5293, Note 2 (effective September 23, 2002). Thus, the Board must next determine whether rating cervical intervertebral disc syndrome based on incapacitating episodes or on the new method set forth at Note 2 results in a rating greater than 40 percent. Where incapacitating episodes of intervertebral disc syndrome have a duration of at least 6 weeks in the previous 12 months, a 60 percent rating is warranted. Where incapacitating episodes of intervertebral disc syndrome have a duration of at least 4 weeks but less than 6 weeks during the previous 12 months, a 40 percent rating is warranted. 38 C.F.R. § 4.71a (effective September 23, 2002). In this case, incapacitating episodes of intervertebral disc syndrome are not shown. The final method of analysis, as mentioned above, is to consider separate ratings for the neurologic manifestations and orthopedic manifestations. Rating neurologic manifestations involves consideration of various regulatory provisions. Below are some relevant rating criteria. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe incomplete paralysis. Absent organic changes, the maximum rating will be moderate, unless sciatic nerve involvement is shown. 38 C.F.R. § 4.123 (2007). Neuralgia, cranial or peripheral, is usually characterized by a dull and intermittent pain, of typical distribution, so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124 (2007). For disease of the peripheral nerves, the term "incomplete paralysis" when used with peripheral nerve injuries indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement, when bilateral combine with application of the bilateral factor. Bilateral upper extremity numbness due to median nerve neuropathy is shown; but motor weakness is not shown. Keeping in mind that wholly sensory manifestations warrant a rating for mild, or at most, a moderate disability, the involvement shown in this case is sensory only. Rating this by analogy to Diagnostic Code 8515, the Board finds that the criteria for a 10 percent rating are more nearly approximated. Under Diagnostic Code 8515, a 10 percent evaluation is warranted for mild incomplete paralysis of the median nerve, major or minor hand. A 30 percent evaluation requires moderate incomplete paralysis of the major hand. A 20 percent rating is awarded for the minor hand. 38 C.F.R. § 4.124(a), Diagnostic Code 8515. Because mild sensory deficits are shown, the disability more nearly approximates the disability picture represented by mild incomplete paralysis in each upper extremity. Thus, the Board will consider a 10 percent rating under Diagnostic Code 8515, for each upper extremity for that portion of the appeal period beginning on September 23, 2002. Thus, for the period beginning on September 23, 2002, the Board must consider a 30 percent rating under Diagnostic Code 5290 and two separate 10 percent ratings under Diagnostic Code 8515. Turning to the latter portion of the appeal period, that is, from September 26, 2003, new and significant rating criteria were added to the rating schedule. Under the recent rating criteria, the diagnostic code numbers changed. Spine disabilities are now rated under the General Rating Formula for Diseases and Injuries of the Spine set forth as follows: 5235 Vertebral fracture or dislocation 5236 Sacroiliac injury and weakness 5237 Lumbosacral or cervical strain 5238 Spinal stenosis 5239 Spondylolisthesis or segmental instability 5240 Ankylosing spondylitis 5241 Spinal fusion 5242 Degenerative arthritis of the spine (see also Diagnostic Code 5003) 5243 Intervertebral disc syndrome Under these revisions, the criteria for a rating based on duration of incapacitating episodes over the past 12 months remains the same. Also unchanged is the procedure for combining, under 38 C.F.R. § 4.25, separate evaluations of the chronic orthopedic and neurologic manifestations; however, the following new rating criteria were added: (For diagnostic codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes): Unfavorable ankylosis of the entire spine....................................... 100 Unfavorable ankylosis of the entire thoracolumbar spine............................ 50 Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine................................................................ 40 Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine......................................................... 30 Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis......................... 20 Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height....................................................... 10 Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. These changes to the rating schedule have simply added a new formula for rating limitation of motion of the spine that was not available prior to September 26, 2003. Because the veteran does not have unfavorable ankylosis of the entire cervical spine, the most recent rating criteria are not advantageous to him. In this case, the evidence does not contain factual findings that demonstrate distinct time periods in which the cervical spine disability exhibited diverse symptoms meeting the criteria for different ratings. While the rating schedule changed distinctly, the symptoms did not. Rather, the examination reports suggest that different examiners have described the same disability in different language. The Board has reconciled the various reports into a consistent picture to reflect the level of disability present in accordance with 38 C.F.R. § 4.2. Therefore, assignment of staged ratings is unnecessary. Fenderson, supra. After consideration of all the evidence of record, including the testimony, the Board finds that for the period prior to September 23, 2002, cervical spine intervertebral disc syndrome should be rated at 40 percent under Diagnostic Code 5293. From September 23, 2002, a 30 percent rating for cervical spine limitation of motion should be granted under Diagnostic Code 5290, and two separate 10 percent ratings, should be granted, for upper extremity neuropathy under Diagnostic Code 8515. Lumbar Spine The RO has assigned an initial 40 percent rating for lumbar spine degenerative changes under Diagnostic Code 5242 for the entire appeal period, i.e., from August 30, 2002. Diagnostic Code 5242 became effective on September 26, 2003. Because the retroactive reach of Diagnostic Code 5242 can be no earlier than its effective date, the Board must re-code the lumbar spine disability under a diagnostic code or codes in effect on August 30, 2002. The appropriate codes are Diagnostic Code 5292, Limitation of motion of the lumbar spine; Code 5293, Intervertebral disc syndrome; and, Code 5295, Chronic lumbosacral strain. Under Diagnostic Code 5292, evaluations from 10 to 40 percent are available for limitation of motion of the lumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2003). Under Diagnostic Code 5295, evaluations from 10 to 40 percent are available for lumbosacral strain. Because the RO has already assigned a 40 percent rating, the maximum available rating for limitation of motion of the lumbar spine, the Board need not revisit Diagnostic Codes 5292 or 5295, as a rating greater than 40 percent could not result; however, the Board must consider Diagnostic Code 5293, Intervertebral disc syndrome, as it offers a 60 percent rating. As noted earlier, under the rating criteria for intervertebral disc syndrome in effect prior to September 23, 2002, a 60 percent evaluation is warranted for pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc with little intermittent relief. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (effective prior to September 23, 2002). An August 2004 VA orthopedic examination report mentions that the veteran had pain in many areas, including the low back. He reported pains of the anterior thighs and legs and he reported that the left foot went numb occasionally. He complained of no muscle weakness and no bowel or bladder incontinence. The lumbar spine was not tender to palpation. Range of motion was to 80 degrees of flexion, 20 degrees of extension, 40 degrees of lateral bending in either direction, and to 30 degrees of rotation in each direction. There was no pain or radiculopathy on testing of the lumbar spine. Lower extremity strength and sensation were full, except for reduced left foot sensation. Deep tendon reflexes were normal and equal. X-rays showed degenerative changes, most significant at L5-S1. The assessment was degenerative lumbar spine. A November 2005 VA rheumatology report notes a complaint of severe pain and spasm in the lower extremities. The assessment was restless leg syndrome. A February 2006 VA orthopedic compensation examination report notes continued low back pains and a current flare-up of that pain. The veteran wore a back brace and had major difficulty rising from a seated position. He took pain medication and anti-inflammatories. He denied bowel or bladder trouble, but reported lower extremity weakness and pain radiating to his buttocks. Activity was severely restricted by low back pain. Back pains caused severe impact in functioning and in activities of daily living. There was tenderness over the lumbar spine and lumbar spine range of motion testing was hardly possible due to pain. Range of motion was to 10 degrees of flexion, to 5 degrees of extension, and to 15 degrees of right and left lateral bending. Range of motion in the rotational plane was not reported. X-rays showed degenerative changes at L5-S1 and sclerosis of the end plates. The diagnosis was lumbar strain. In February 2006, an X-ray technician reported in a "to whom it may concern" letter that it was necessary to assist the veteran onto and off of the X-ray table because of low back pain. In May 2006, the veteran testified before an RO hearing officer that his low back pain emanated from the middle of the back. Any bending of the back was difficult for him. He could stand about 15 minutes without severe back pain with leg and thigh pain. A May 2006 lumbar computerized tomography (CT) scan was normal, but notes that an MRI showed early degenerative disc disease and disc bulging at L3, and greater degenerative disc disease and bulging annulus fibrosus and central sub annular disc protrusion at L4-5. A June 2006 VA neurology compensation examination report notes that the veteran was wearing a TLSO (thoracolumbosacral orthosis). Muscle bulk and tone were normal in the four extremities. Sensation was patchy in the lower extremities. Resolving the various reports into a consistent disability picture, as required by 38 C.F.R. § 4.2, and considering the tenets of DeLuca, supra, the Board finds severe limitation of motion of the lumbar spine throughout the appeal period. However, a 40 percent rating for this level of severity has already been assigned. The next question is whether there is a basis for a 60 percent rating under Diagnostic Code 5293, intervertebral disc syndrome. As noted earlier, under the rating criteria for intervertebral disc syndrome in effect prior to September 23, 2002, a 60 percent evaluation is warranted for pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc with little intermittent relief. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (effective prior to September 23, 2002). Comparing the manifestations of the lumbar spine degenerative disc disease (severe limitation of motion without radiculopathy) to these rating criteria, it does not appear that the manifestations more nearly approximate the criteria of a 60 percent rating. This is because the persistent symptoms consistent with radiculopathy are not shown. The August 2004 VA examination report notes no radiculopathy, even after the veteran had reported leg and thigh pains and numbness of the left foot. Other reports, such as a November 2006 VA outpatient treatment report note somatization and restless leg syndrome, rather than radiculopathy. After considering all the evidence of record, including the testimony, the Board finds that the preponderance of the evidence is against a 60 percent rating for intervertebral disc syndrome for any portion of the entire appeal period. Next for consideration is the impact, if any, that the revisions to the rating schedule have upon this case. As noted earlier, on September 23, 2002, the 60 percent rating for intervertebral disc syndrome became based on duration of incapacitating episodes (defined as periods of doctor prescribed bed rest) over the past 12 months, rather than on pronounced intervertebral disc syndrome. See 38 C.F.R. § 4.71a, Diagnostic Code 5293 (effective September 23, 2002). However, because incapacitating episodes are not shown in this case, this revision does not help the veteran. The final method of analysis, as mentioned above, is to consider separate ratings for the neurologic manifestations and orthopedic manifestations. However, the evidence does not attribute lower extremity neurologic symptoms to the lumbar spine disability. Thus, a schedular rating greater than 40 percent for the lumbar spine is not warranted for any portion of the appeal period. Turning to the latter portion of the appeal period, that is, from September 26, 2003, no rating greater that 40 percent is available under these criteria unless ankylosis is shown. In this case, ankylosis of the lumbar spine is not shown. Thus, the most recent rating criteria are not advantageous to the veteran. The evidence does not contain factual findings that demonstrate distinct time periods in which the lumbar spine disability exhibited diverse symptoms meeting the criteria for different ratings. While the rating schedule changed distinctly, the symptoms did not. Assignment of staged ratings is not warranted. Hart, supra. After consideration of all the evidence of record, including the testimony, the Board finds that the preponderance of it is against the claim. 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 (West 2002); Gilbert, supra. The claim for an initial disability rating greater than 40 percent for the lumbar spine is therefore denied. Left Shoulder Left shoulder impingement, decompression, clavicle resection, and acromioclavicular arthritis has been assigned an initial 10 percent rating under Diagnostic Codes 5010-8516. The Board must determine whether there is any basis to assign a rating greater than 10 percent during any portion of the appeal period. Diagnostic Code 5010 provides that arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. In turn, degenerative arthritis (hypertrophic or osteoarthritis) when established by X-ray findings is rated on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent evaluation will be assigned where there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbation. A 10 percent evaluation will be assigned where there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups, but without occasional incapacitating exacerbation. Note (1) The 20 percent and 10 percent ratings based on X- rays will not be combined with ratings based on limitation of motion. Note (2) The 20 percent and 10 percent ratings based on X- rays will not be used in ratings listed under diagnostic codes 5013-5024. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2007). Ankylosis of the scapulohumeral articulation is rated under Diagnostic Code 5200. Ankylosis that limits range of motion of the arm to 25 degrees from the side warrants a 50 percent rating for the major side and a 40 percent rating for the minor side. This is "unfavorable ankylosis." 38 C.F.R. § 4.71a, Diagnostic Code 5200 (2007). Limitation of motion of the arm to 60 degrees, permitting the hand to reach the mouth and head, is "favorable ankylosis," and warrants a 30 percent rating for the major side and a 20 percent rating for the minor side. If limitation of motion is between favorable and unfavorable, a 40 percent rating is warranted for the major side and a 30 percent rating for the minor side. 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2007). Impairment of the clavicle or scapula of either side with malunion is assigned a 10 percent disability rating. Impairment of the clavicle or scapula of either side with nonunion and without loose movement is assigned a 10 percent disability rating. Impairment of the clavicle or scapula with dislocation, or with nonunion and loose movement is assigned a 20 percent disability rating for either the major or the minor side. 38 C.F.R. § 4.71a, Diagnostic Code 5203 (2007). Incomplete severe paralysis of the major hand warrants a 40 percent rating and 30 percent for the minor hand. Incomplete moderate paralysis of the major hand warrants a 30 percent rating and 20 percent for the minor hand. Incomplete mild paralysis of either hand warrants a 10 percent rating. 38 C.F.R. § 4.124(a), Diagnostic Code 8516 (2007). August 2002 left shoulder X-rays showed calcific tendonitis and degenerative changes of the acromioclavicular joint. An August 2002 MRI showed degenerative changes with spur formation. An October 2002 VA emergency department note reflects left shoulder pains. Arthroscopy was performed, subacromial decompression was carried out, and the distal clavicle was resected. An October 2002 VA physical therapy consultation report notes that a painful flare-up rendered the veteran unable to tolerate any shoulder movement. The assessment was biceps tendonitis. An August 2004 VA orthopedic examination report indicates full left shoulder range of motion, which was to 180 degrees of forward flexion and abduction, external rotation to 170 degrees, internal rotation to about 80 degrees. He had mild impingement sign and some weakness. The report notes that a 2002 MRI showed degenerative changes of the acromioclavicular joint. The examiner felt that surgery seems to have been successful, as the left shoulder had full, painless range of motion. A February 2006 VA orthopedic compensation examination report notes that the veteran had no left shoulder complaint. The assessment was resolved left rotator cuff tendinopathy. In May 2006, the veteran testified before an RO hearing office that he had limited left shoulder range of motion and pulling sensations under the arm pit. A June 2006 VA neurology compensation examination report (for headaches) notes excellent left shoulder range of motion. The X-rays show arthritis of the shoulder and the veteran has testified as to limited motion. Under Diagnostic Code 5003, these symptoms approximate the criteria for a 10 percent rating, but no more. The medical evidence does not contain any indication that the requirements for a 20 percent or higher rating for the left shoulder have been met at any time during the appeal period. Very little additional functional impairment due to such symptoms as pain, pain on use, weakness, or fatigue has been shown. The evidence does not contain factual findings that demonstrate distinct time periods in which the left shoulder disability exhibited diverse symptoms meeting the criteria for different ratings. Assignment of a staged rating is therefore unnecessary. Fenderson, supra. After consideration of all the evidence of record, including the testimony, the Board finds that the preponderance of it is against the claim. 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 (West 2002); Gilbert, supra. The claim for an initial disability rating greater than 10 percent for the left shoulder is denied. Chronic Heart Palpitations Chronic heart palpitations have been assigned an initial 10 percent rating under Diagnostic Codes 7099-7011. Diagnostic Code 7011 is the code for sustained ventricular arrhythmias. The Board must determine whether there is any basis to assign a rating greater than 10 percent during any portion of the appeal period. VA must consider 38 C.F.R. § 4.100 when rating a disability under Diagnostic Code 7011. 38 C.F.R. § 4.100 (2007) provides that whether or not cardiac hypertrophy or dilatation (documented by electrocardiogram, echocardiogram, or X-ray) is present and whether or not there is a need for continuous medication; even if the requirement for a 10 percent rating (based on the need for continuous medication) or a 30 percent rating (based on the presence of cardiac hypertrophy or dilatation) is met, metabolic equivalents (METs) testing is required unless: (1) it is medically contra-indicated); or, (2) when left ventricle ejection fraction (LVEF) is measured and is 50 percent or less; or (3) when congestive heart failure is present or there has been more than one episode of congestive heart failure in the last year; or, (4) when a 100 percent rating can be assigned on another basis. If LVEF is not of record, evaluation should be based on alternative criteria unless the examiner states that the LVEF test is needed in a particular case because the available medical information does not sufficiently reflect the severity of the veteran's cardiovascular disability. 38 C.F.R. § 4.104 further provides that where a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METS and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. Under Diagnostic Code 7011, a 10 percent rating is warranted for sustained ventricular arrhythmias where a workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or where continuous medication is required. A 30 percent rating is warranted for sustained ventricular arrhythmias where a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is warranted where there has been more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is warranted for (1) indefinite period from date of hospital admission for initial evaluation and medical therapy for a sustained ventricular arrhythmia, or; for indefinite period from date of hospital admission for ventricular aneurysmectomy, or; with an automatic implantable Cardioverter-Defibrillator (AICD) in place or (2) chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, Diagnostic Code 7011 (2007). An August 2004 VA heart examination report indicates that upon claims file review, interview and examination of the veteran, medication review, Holter monitoring, and consideration of the types of exertional exercise undertaken routinely, the examiner estimated the veteran's METs to be 3 to 5. His capacity for work was "light" and his treating cardiologist had recommended against an exercise stress test. The diagnosis was heart palpitations and possible panic attacks. Cardiac hypertrophy or dilatation was not shown. In January, February and March 2006, the veteran underwent VA cardiac evaluations. January reports note that heart palpitations were under control with atenolol. A February 2006 VA cardiology compensation examination report notes a history of arrhythmias, controlled with medication. A March 7, 2006, myocardial perfusion study showed left ventricular ejection fraction of 57-58 percent. The VA physician noted that the veteran's palpitations would more likely than not be compatible with any type of job requiring lots of physical of physical activity, but then noted parenthetically that hurrying would likely trigger his palpitation. In May 2006, the veteran testified before an RO hearing office that he had daily heart palpitations. The lay and medical evidence factually demonstrates that the disability more nearly approximates the criteria of a 60 percent rating. In August 2004, actual METS were not obtained because a stress test was contra-indicated. The examiner estimated the veteran's METS at 3 to 5. The specific example offered was ability to do "light" work. Where a workload of greater than 3 METS, but less than 5 METS (or the estimated METS in this case) results in symptoms (or is estimated to result in symptoms), the criteria for a 60 percent rating under Diagnostic Code 7011 are more nearly approximated. Thus, this examination report argues strongly for a 60 percent rating. On March 7, 2006, a perfusion study yielded an LVEF of greater than 50 percent; however, new METS were not obtained. According to 38 C.F.R. § 4.100, where LVEF is greater than 50 percent, METS are not required for rating. The regulation does not prefer the LVEF over estimated METS where both are available. Rather, the regulation simply states that METS are not required for rating the disability where LVEF is greater than 50 percent. In this case, estimated METS are available. Regardless of the LVEF above 50 percent, the rating assigned may be based on the estimated METS alone, if more favorable to the veteran. No medical professional has disqualified the August 2004 VA examination report or noted that the service- connected heart disability has improved since that time. Apparently, a stress test is still contra-indicated because the February 2006 VA examination report indicates that stress testing was not performed. The Board finds therefore that throughout the appeal period, a stress test has been contra- indicated and that the criteria of a 60 percent rating under Diagnostic Code 7011 have been more nearly approximated, based on an estimated METS of 3 to 5. The evidence does not contain factual findings that demonstrate distinct time periods in which the cardiac disability exhibited diverse symptoms meeting the criteria for different ratings. While an ejection fraction was obtained during the latter portion of the appeal period, no medical expert has maintained that it represented an improvement in the level of disability. Assignment of staged ratings is therefore unnecessary. Fenderson, supra. After consideration of all the evidence of record, including the testimony, the Board finds that the evidence favors the claim. The claim for an initial disability rating greater of 60 percent for the heart palpitations is therefore granted. Bilateral Hearing Loss Disability Evaluations of defective hearing may range from noncompensable to 100 percent based on the measured results of controlled speech discrimination tests together with the average hearing threshold level, as measured by pure tone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 cycles per second. To evaluate the degree of disability from a service-connected hearing loss, the rating schedule establishes auditory acuity levels, designated Level I for essentially normal acuity, through Level XI for profound deafness. 38 C.F.R. §§ 4.85, Tables VI, VIA, VII; § 4.86, Diagnostic Code 6100; § 4.87 (2007). Under 38 C.F.R. § 4.86, 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. Also, 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. 38 C.F.R. § 4.86 (2007). Because these criteria are not shown, the Board need not refer to Table VIa. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2004) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected bilateral sensorineural hearing loss disability. Nothing in the historical record would lead to the conclusion that the current evidence of record is not adequate for rating purposes. This case presents no evidentiary considerations which would warrant further exposition of remote clinical histories and findings pertaining to this disability. The relevant medical evidence consists of a VA ear disease compensation examination report, VA audiometry evaluations, and assertions of the veteran. A September 2004 VA ear disease examination report reflects that Meniere's disease was not present. According to a September 2004 V audiometry report, pure tone thresholds, in decibels, were as follows (ANSI): HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 20 25 70 LEFT 20 25 25 35 55 According to the report, right ear average pure tone threshold was 75 decibels. Left ear pure tone average was 35 decibels. Speech audiometry revealed speech recognition ability of 88 percent in either ear. Reviewing these figures, it is obvious that the right ear average pure tone threshold, as reported, is erroneous. Because each reported frequency is 70 or less, the average cannot be 75. However, in order to resolve any doubt in favor of the veteran, the Board will use a right ear pure tone average of 75 decibels, as shown in the report. This does not change the result. Applying these values to 38 C.F.R. § 4.85, Table VI, the right ear is Level III and the left ear is Level II. This assigned evaluation is determined by mechanically applying the audiometry results to the rating criteria. Lendenmann v. Principi, 3 Vet. App. 345 (1992). In May 2006, the veteran testified that he could not hear higher frequencies and that he had to turn up the volume on the radio and TV, which bothered other people. According to an August 2007 VA audiometry report, right ear pure tone average was 36 decibels and left ear pure tone average was 35 decibels. Right ear speech recognition score was 88 percent and left ear speech recognition score was 84 percent. Applying these values to 38 C.F.R. § 4.85, Table VI, the right ear is Level II and the left ear is Level II. Applying the audiometry evaluations to Table VII results in the assignment of a noncompensable evaluation for bilateral hearing loss under Diagnostic Code 6100. The claims file contains no competent evidence of hearing that is worse than that shown in the two audiometry evaluations mentioned above. The rating to be assigned for hearing loss is not a matter of judgment; it is simply a mechanical application of the audiometry findings to the chart. Id. Thus, assignment of a compensable evaluation for bilateral hearing loss is not warranted. The evidence does not contain factual findings that demonstrate distinct time periods in which the bilateral hearing loss disability exhibited diverse symptoms meeting the criteria for different ratings. Assignment of staged ratings is therefore unnecessary. Fenderson, supra. 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 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1991). The claim for a compensable rating for bilateral hearing loss is denied. Extraschedular Consideration A total disability rating for compensation purposes based on individual unemployability (TDIU) has been assigned for the entire appeal period. Therefore, the Board need not remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b) (1). See Bagwell v. Brown, 9 Vet. App. 157, 158-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash, 8 Vet. App. at 227. See also VAOPGCPREC. 6-96. ORDER Service connection for a right ankle disability is denied. For the period prior to September 23, 2002, a 40 percent schedular rating for severe cervical intervertebral disc syndrome is granted, subject to the laws and regulations governing payment of monetary benefits. From September 23, 2002, a 30 percent schedular rating for severe limitation of motion of the cervical spine and separate 10 percent ratings for median neuropathy of each upper extremity are granted, subject to the laws and regulations governing payment of monetary benefits. An initial rating higher than 40 percent for the lumbar spine is denied. An initial rating higher than 10 percent for the left shoulder joint is denied. An initial 60 percent rating for heart palpitations is granted, subject to the laws and regulations governing payment of monetary benefits. An initial compensable rating for bilateral sensorineural hearing loss is denied. REMAND Bilateral Hips, Bilateral Knees The SMRs are silent for any complaint of or treatment for either hip or knee. In his original service connection claim submitted in August 2002, the veteran reported that he received treatment for the knees and hips from January 1988 to the present. He reported that he had been injured by a landmine explosion in 1968 that caused spinal injuries, but he did not allege that the blast injured either hip or either knee. In November 2002, he reported that hip and knee pains began in the later 1980s. According to an August 2004 VA orthopedic compensation examination report, however, the veteran had attributed disorders of the hips and knees to a land mine explosion in Vietnam in 1968. After X-rays were taken, the diagnoses were bilateral greater trochanteric bursitis and mild osteoarthritis of the bilateral patellofemoral joints. Concerning etiology, the examiner concluded that the bilateral hip and knee disabilities were age-related and did not stem from injuries in Vietnam. The veteran testified before an RO hearing officer in July 2004 that bilateral knee and bilateral hip pains began in the Army where they marched long distances with heavy backpacks. He testified in May 2006 that he attributed knee pains to over 20 years of running and marching and he testified that he did not intend to attribute these disorders to a landmine blast. The physician who conducted the August 2004 VA orthopedic compensation found bilateral trochanteric bursitis and bilateral knee osteoarthritis, but dissociated these from trauma incurred in Vietnam in 1968. Although the examiner has persuasively dissociated the disorders from a 1968 blast, the examiner has not addressed whether it is at least as likely as not (50 percent or greater probability) that bilateral trochanteric bursitis began at a later time during active service. Neither has the examiner addressed whether it is at least as likely as not (50 percent or greater probability) that bilateral patellofemoral joint arthritis began during active service or within one year from separation from active service. The claims files and the August 2004 examination reports must therefore be returned to the examiner for and addendum opinion. The examiner is asked to review the file and address whether it is at least as likely as not (50 percent or greater probability) that 20 years of rigorous military life, including marching under heavy loads, has caused or contributed to any current hip or knee disorder. Initial 10 percent Rating for Headaches As noted in the introduction, the veteran submitted an NOD to a January 2007 rating decision that granted service connection and assigned a 10 percent rating for headaches. No SOC has been issued addressing this issue and the veteran has not withdrawn his NOD. In accordance with 38 C.F.R. § 19.26, unless the matter has been resolved by a grant of benefits or the NOD is withdrawn by the appellant or his representative, the agency must prepare an SOC. Thus, a remand is necessary. Manlincon, supra. However, the issue will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following action: 1. The AOJ should return the claims file to the August 2004 orthopedic examiner for an addendum. The examiner is asked to: I. Note a review of the claims file in the report, including his original service connection claim wherein he reported that bilateral hip and bilateral knee pains began in 1988. II. Address whether it is at least as likely as not (50 percent or greater probability) that either disorder began during active service, based on the veteran's claim date of onset of symptoms. III. If it is unlikely that either disorder began during active service, then is it at least as likely as not (50 percent or greater probability) that bilateral patellofemoral osteoarthritis began within a year of discharge from active service. The examiner should offer a rationale for any conclusion in a legible report. If any question cannot be answered, the examiner should state the reason. If the specified examiner is unavailable, a qualified substitute may be used. The veteran may be reexamined if necessary. 2. Following the above, the AOJ should review all the relevant evidence and readjudicate the service connection claims for bilateral hip and bilateral knee disabilities. If the desired benefits are not granted, an appropriate SSOC should be issued. The veteran should be afforded an opportunity to respond to the SSOC before the claims folders are returned to the Board. 3. The AOJ should issue a statement of the case with respect to the 10 percent initial rating for headaches. The veteran should be informed that, under 38 C.F.R. § 20.302 (2007), he has 60 days from the date of mailing of the statement of the case to file a substantive appeal or a request for an extension of time to do so. Thereafter, if a substantive appeal has been filed, the case should be returned to the Board, if in order. Thereafter, the case should be returned to the Board, if in order. The purposes of this remand are to comply with due process of law and to further develop the veteran's claim. No action by the veteran is required until he receives further notice. The Board intimates no opinion as to the ultimate outcome of this case. The veteran has the right to submit additional evidence and argument on the 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. 2007). ______________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs