Citation Nr: 0809950 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 05-01 602 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for migraine headaches. 3. Entitlement to service connection for tinnitus. 4. Entitlement to a compensable disability rating for hypertension. 5. Entitlement to a disability rating higher than 10 percent for lumbosacral strain and degenerative disc disease (DDD) of the lumbar spine prior to November 16, 2007. 6. Entitlement to a disability rating higher than 20 percent for lumbosacral strain and DDD of the lumbar spine since November 16, 2007. 7. Entitlement to a separate compensable rating for neuropathy of the right lower extremity associated with the low back disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Paul S. Rubin, Associate Counsel INTRODUCTION The veteran had active military service from August 1971 to August 1991. This appeal to the Board of Veterans' Appeals (Board) arose from an April 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina and from a July 2004 rating decision by the RO in Atlanta, Georgia. The Atlanta office forwarded his appeal to the Board. The Board is remanding the bilateral hearing loss, migraine headaches, tinnitus, and hypertension claims to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration. But the Board will go ahead and decide the claims for higher ratings for the low back disability and associated neuropathy. FINDINGS OF FACT 1. Prior to November 16, 2007, under the September 2002 and 2003 amendments, although the veteran's low back intervertebral disc syndrome (IVDS) exhibited loss of lateral spine motion, lumbar lordosis secondary to muscle spasm, and incapacitating episodes requiring bedrest close to three weeks a year, it did not exhibit incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, vertebral fracture requiring a neck brace, favorable or unfavorable ankylosis, severe lumbosacral strain, or forward flexion of the thoracolumbar spine 30 degrees or less. 2. Since November 16, 2007, under the September 2002 and 2003 amendments, the veteran's low back IVDS has not exhibited incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, vertebral fracture requiring a neck brace, favorable or unfavorable ankylosis, severe lumbosacral strain, or forward flexion of the thoracolumbar spine 30 degrees or less. 3. The neuropathy in the veteran's right lower extremity associated with his IVDS is "mild" in degree. CONCLUSIONS OF LAW 1. Prior to November 16, 2007, the criteria were met for a higher 20 percent disability rating, but no greater, for the veteran's service-connected lumbosacral strain and IVDS of the lumbar spine. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.21, 4.40, 4.45, 4.71a, Diagnostic Codes 5295 and 5293 (in effect as of September 23, 2002); 4.71a, Diagnostic Codes 5237, 5243 (in effect as of September 26, 2003). 2. Since November 16, 2007, the criteria have not been met for a disability rating higher than 20 percent for the veteran's service-connected lumbosacral strain and IVDS of the lumbar spine. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.21, 4.40, 4.45, 4.71a, Diagnostic Codes 5295 and 5293 (in effect as of September 23, 2002); 4.71a, Diagnostic Codes 5237, 5243 (in effect as of September 26, 2003). 3. The criteria are met for a separate initial disability rating of 10 percent, but no higher, for neuropathy of the right lower extremity associated with the veteran's service- connected IVDS. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.21, 4.124a, Diagnostic Code 8520 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duties to Notify and Assist Review of the claims file reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). That is, by way of a VCAA letter dated in September 2003, the RO advised the veteran of the evidence needed to substantiate his claim for an increased rating for his lumbar spine disorder and explained what evidence VA was obligated to obtain or to assist him in obtaining and what information or evidence he was responsible for providing. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). Thus, the Board finds that the RO has provided all notice required by the VCAA for the first three elements of notice. 38 U.S.C.A. § 5103(a). See Quartuccio, supra. In addition, a more recent March 2006 letter from the RO further advised the veteran of the disability rating and downstream effective date elements of his claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Notably, though, the RO did not provide this additional notice before initially adjudicating the claim - the preferred sequence. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (Pelegrini II). However, with regards to the timing of notice, the Federal Circuit Court and Veterans Claims Court have since further clarified that the VA can provide additional necessary notice subsequent to the initial AOJ adjudication, and then go back and readjudicate the claim, such that the essential fairness of the adjudication - as a whole, is unaffected because the appellant is still provided a meaningful opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV). (where the Federal Circuit Court held that a statement of the case (SOC) or supplemental SOC (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC). As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, after providing the additional VCAA Dingess notice in March 2006, the RO went back and readjudicated the claim in the more recent December 2007 SSOC. So after providing the required additional notice, the RO reconsidered the claim - including addressing any additional evidence received in response to the notice. So the timing defect in the notice has been rectified. No VCAA letter of record, however, satisfied the fourth element of VCAA notice by asking the veteran to provide any evidence in his possession pertaining to his claim or something to the effect that he should "give us everything you've got pertaining to your claim[]". Pelegrini II, 18 Vet. App. at 120-21. This "fourth element" notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). But see VA Office of General Counsel (OGC) Prec. Opinion 1-2004 (Feb. 24, 2004) (indicating § 5103(a) does not require VA to seek evidence from a claimant other than that identified by VA as necessary to substantiate the claim, therefore concluding that the fourth element of the VCAA notice cited in Pelegrini v. Principi 17 Vet. App. 412 (2004) (Pelegrini I) - identical to the language in Pelegrini II, is mere dictum and therefore not binding on VA). The Board is bound by the precedent opinions of VA's General Counsel as the chief legal officer of the Department. See 38 U.S.C.A. § 7104(c). With respect to increased-rating claims, in particular the lumbar spine claim at issue, in Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. January 30, 2008) the Court recently held that, at a minimum, a 38 U.S.C.A. § 5103(a) notice requires that the Secretary notify the claimant that, to substantiate such a claim, (1) the claimant must 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; (2) if the Diagnostic Code (DC) under which the claimant 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 of 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; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant DCs, which typically provide for a range in severity of a particular disability from 0 percent 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; and (4) the notice 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. Here, the general VCAA and Dingess notice letters of record are generally compliant with elements (1), (3), and (4) listed above in Vazquez-Flores. But as to element (2), the Board acknowledges no VCAA notice letter of record addresses the specific criteria necessary for entitlement to a higher disability rating for the lumbar spine disorder, under either the 2002 or 2003 amendments. In this regard, in Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the Federal Circuit Court held that any error by VA in providing the notice required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1), concerning any element of a claim, is presumed prejudicial. Further, VA, not the veteran, has the burden of rebutting this presumption by showing the error was not prejudicial to the veteran in that it does not affect the essential fairness of the adjudication. To do this, VA can demonstrate that any defect was cured by actual knowledge on the part of the claimant (see Vazquez-Flores v. Peake, No. 05-0355, slip op. at 12 (U.S. Vet. App. January 30, 2008) ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim." In this vein, here, in his November 2004 notice of disagreement (NOD), January 2005 substantive appeal (VA Form 9), and in the report of his November 2007 VA examination, the veteran specifically indicated he had muscle spasms and constant pain with limitations of daily activities, symptoms required for a higher rating under both the 2002 and 2003 regulations. In addition, he stated to the October 2003 VA examiner the degree of bed rest required during incapacitating episodes of his lumbar spine disorder. Therefore, any content defect was cured by the actual knowledge of the veteran as to the symptoms required for a higher rating for his lumbar spine disability. In short, the error does not affect the essential fairness of the adjudication, and thus is not prejudicial. 38 C.F.R. § 20.1102. Furthermore, the veteran's representative indicated in the February 2008 Informal Hearing Presentation that "the merits of the case have been advanced and [that they have] no further argument." As for the duty to assist, the RO obtained the veteran's service medical records (SMRs), VA treatment records, private medical records he identified, and afforded him several VA examinations to determine the current severity of his lumbar spine disability. He has personally submitted additional private medical evidence and personal statements. Neither he nor his representative has ever indicated that other evidence remains outstanding pertaining to his lumbar spine disability. Thus, the Board is satisfied that the duty to assist has been met. 38 U.S.C.A. § 5103A. Governing Laws and Regulations for Higher Disability Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2007). The basis of disability evaluations is the ability of the body as a whole or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of her disability in reaching its decision, to the extent it reflects on the current level of disability. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The lumbar spine claim at issue arises from a claim for an increased rating received in September 2003. As a result, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Court recently held VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. Hart v. Mansfield, 21 Vet. App. 505 (2007). That is to say, the Board must consider whether there have been times when the disability has been more severe than at others. The relevant temporal focus for adjudicating the level of disability of an increased rating claim is from the time period one year before the claim was filed (in this case, September 2002) until VA makes a final decision on the claim. See Hart, supra. See also 38 U.S.C.A. § 5110(b)(2) (West 2002); 38 C.F.R. § 3.400(o)(2) (2007). Here, the RO has already partially "staged" the rating as of November 16, 2007. Specifically, prior to this date, the veteran's service-connected lumbosacral strain and DDD of the lumbar spine is rated as 10 percent disabling. As of this date, this disability is rated as 20 percent disabling. When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the veteran may have by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Analysis - Higher Rating Beyond 10 Percent Prior to November 16, 2007 From September 1, 1991 to November 16, 2007, the veteran's service-connected lumbosacral strain and DDD of the lumbar spine was rated as 10 percent disabling. As of November 16, 2007, the rating increased to 20 percent. During the interim, in September 2003, the veteran filed the claim at issue for an increased rating for his lumbar spine disability. The criteria for rating spine disorders were amended in September 2002 and again in September 2003. See 67 Fed. Reg. 54,345-54,349 (Aug. 22, 2002); 68 Fed. Reg. 51,454 (Aug. 27, 2003). If, as here, a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C.A. § 5110(g); VAOPGCPREC 3- 2000. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. The amendments mentioned have established the effective dates without a provision for retroactive application. Thus, the September 2002 amendments may only be applied after September 2002; likewise, the September 2003 amendments may only be applied after September 2003. During the course of this appeal, VA has evaluated the veteran's lumbar spine disorder under multiple diagnostic codes. He was originally service connected for a lumbosacral strain under Diagnostic Code 5295 (September 2002 amendments) and under Diagnostic Code 5237 (September 2003 amendments). DDD and a herniated disc (IVDS) were also eventually diagnosed as a "progression" of his service-connected lumbar spine disability. See October 2003 VA examination report. Thus, the Board will also consider rating his IVDS under Diagnostic Code 5293 (September 2002 amendments) and under Diagnostic Code 5243 (September 2003 amendments). The 2002 amendments allow for IVDS to be evaluated based on incapacitating episodes or based on chronic orthopedic and neurologic manifestations combined. The 2003 amendments renumber the diagnostic codes and create a general rating formula for rating diseases and injuries of the spine, based largely on limitation or loss of motion, as well as other symptoms. The Board sees the RO addressed both the 2002 and 2003 amendments in its SOC and SSOC. Therefore, the Board may also consider these amendments without first determining whether doing so will be prejudicial to the veteran. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). According to the September 2002 regulations, under Diagnostic Code 5292, severe limitation of motion of the lumbar spine warrants a 40 percent evaluation, moderate limitation of motion a 20 percent evaluation, and slight limitation of motion a 10 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (in effect prior to September 26, 2003). The Board notes that the rating schedule applied prior to the September 2003 amendments does not define a normal range of motion for the lumbar spine. However, current regulations do establish normal ranges of motion for the thoracolumbar spine. See 38 C.F.R. § 4.71a, Plate V. The supplementary information associated with the amended regulations state that the ranges of motion were based on medical guidelines in existence since 1984. See 67 Fed. Reg. 56,509 (Sept. 4, 2002). Therefore, the Board will apply the most recent September 2003 guidelines for ranges of motion of the spine to the old criteria. Under the September 2002 regulations, Diagnostic Code 5295, severe lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwait's sign, marked limitation of forward bending in the standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of the joint space, or some of the above with abnormal mobility on forced motion, warrants a 40 percent evaluation. Lumbosacral strain with muscle spasm on extreme forward bending and loss of lateral spine motion, unilaterally, in the standing position, warrants a 20 percent evaluation. With characteristic pain on motion, a 10 percent evaluation is warranted and with slight subjective symptoms only, a noncompensable (i.e., 0 percent) evaluation is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (in effect prior to September 26, 2003). Under the September 2002 amendments, the regulations regarding IVDS were revised. Under the revised regulations, IVDS (preoperatively or postoperatively) is evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 (the combined rating table) separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. These regulations were in effect from September 23, 2002 to September 26, 2003. The criteria for evaluating incapacitating episodes of IVDS under the September 2002 and September 2003 revisions are essentially the same, except that the diagnostic code for IVDS was changed from 5293 to 5243. Thus, for clarity's sake, the Board will only refer to IVDS under the regulations after September 2003. Under the September 2003 amendments, the veteran's IVDS (preoperatively or postoperatively) is evaluated under the General Rating Formula for Diseases and Injuries of the Spine, or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. According to the Formula for Rating IVDS Based on Incapacitating Episodes: A 10% rating requires evidence of incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months. A 20% rating requires evidence of incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40% rating requires evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60% rating requires evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note 1: For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note 2: If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment will be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (in effect after September 26, 2003). Under the September 2003 amendments, IVDS and lumbosacral strain may also be rated under the General Rating Formula for Diseases and Injuries of the Spine: With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease: A 10% evaluation will be assigned for 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 of more of height. A 20% rating is assigned for 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. A 30% evaluation is assigned for forward flexion of the cervical spine to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40% rating requires evidence of unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50% evaluation will be assigned with evidence of unfavorable ankylosis of the entire thoracolumbar spine. A 100% rating requires evidence of unfavorable ankylosis of the entire spine. 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 is zero to 45 degrees, and left and right lateral rotation is 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 is zero to 30 degrees, and left and right lateral rotation is 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. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (in effect after September 26, 2003). The Board now turns to its analysis of the evidence of record. The Board is partially granting the claim since, even prior to November 16, 2007, the evidence of record is supportive of a higher 20 percent rating for the veteran's IVDS and lumbosacral strain under either Diagnostic Code 5295 or Diagnostic Code 5293. 38 C.F.R. § 4.7. Specifically, the October 2003 examiner noted some loss of lateral spine motion (to 25 degrees right and left due to pain). This factor is indicative of a higher 20 percent rating under Diagnostic Code 5295. In addition, an earlier June 1992 VA X-ray revealed lumbar lordosis secondary to muscle spasm, and the veteran's November 2004 NOD also reports muscle spasms, supportive of a higher 20 percent rating under Diagnostic Code 5295. Moreover, as to his IVDS manifestations of his low back disability, the October 2003 examiner noted "severe" flare-ups requiring bedrest twice a year, for approximately 10 days each time, so close to three weeks a year total. This factor is indicative of a higher 20 percent rating for incapacitating episodes between two and four weeks a year under Diagnostic Codes 5293 and 5243. Finally, private records show the veteran receiving steroid injections to treat his back pain and spasms since 1999. So resolving all reasonable doubt in his favor, prior to November 16, 2007, these symptoms of his service-connected lumbosacral strain and IVDS warrant a higher 20 percent rating under Diagnostic Codes 5295 or 5243. 38 C.F.R. § 4.3. There is no basis, however, for increasing the rating beyond this higher 20-percent level prior to November 16, 2007. 38 C.F.R. § 4.7. That is, under the September 2002 regulations, neither VA treatment records, nor private medical records, nor the report of the October 2003 VA examination reveals vertebral fracture requiring a neck brace (Diagnostic Code 5285); favorable or unfavorable ankylosis of the lumbar spine (Diagnostic Codes 5286 and 5289); "severe" limitation of motion of the lumbar spine - flexion was 80 degrees even with consideration of pain (Diagnostic Code 5292); incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (Diagnostic Code 5293); or severe lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwait's sign, marked limitation of forward bending in the standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of the joint space, or some of the above with abnormal mobility on forced motion (Diagnostic Code 5295). Absent any evidence of these criteria, a rating beyond 20 percent is not warranted under the September 2002 regulations. Under the September 2003 regulations, as to orthopedic manifestations of the veteran's low back disability under the General Rating Formula for Diseases and Injuries of the Spine, the evidence of record does not demonstrate entitlement to a higher 40 percent evaluation in that neither ankylosis nor forward flexion of the thoracolumbar spine 30 degrees or less has been demonstrated. Specifically, as noted above, the range of motion in degrees recorded at the October 2003 VA examination showed 80 degrees flexion with consideration of functional loss and pain with no evidence of ankylosis. The veteran is still able to work regularly as a supervisor with the U.S. Postal Service, losing only three to five days from work per year, with some impingement in daily activities. Any functional loss present is adequately accounted for in the higher 20 percent rating being assigned. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 206-207. Under the September 2003 regulations, as to incapacitating episodes, there is no evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, which is required for a higher 40 percent rating. In summary, prior to November 16, 2007, the Board finds that the evidence supports a higher 20 percent disability rating, but no greater, for the veteran's lumbar spine IVDS and lumbosacral strain under both the 2002 and 2003 amendments to the rating criteria. 38 C.F.R. § 4.3. Analysis - Higher Rating Beyond 20 Percent Since November 16, 2007 In addition, from November 16, 2007 onwards, the veteran does not satisfy the requirements for a rating beyond 20 percent. 38 C.F.R. § 4.7 That is, under the September 2002 regulations, the report of the November 2007 VA examination shows no vertebral fracture requiring a neck brace (Diagnostic Code 5285); no favorable or unfavorable ankylosis of the lumbar spine (Diagnostic Codes 5286 and 5289); no "severe" limitation of motion of the lumbar spine - flexion was 45 degrees even with consideration of pain (Diagnostic Code 5292); no incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (placed on bed rest six times during the past year, but no indication of how long, and it was not severe enough for him to miss any work) (Diagnostic Code 5293); and no severe lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwait's sign, marked limitation of forward bending in the standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of the joint space, or some of the above with abnormal mobility on forced motion (Diagnostic Code 5295). Absent any evidence of these criteria, a rating beyond 20 percent is not warranted under the September 2002 regulations. Under the September 2003 regulations, as to orthopedic manifestations of the veteran's low back disability under the General Rating Formula for Diseases and Injuries of the Spine, the evidence of record does not demonstrate a higher 40 percent evaluation in that neither ankylosis nor forward flexion of the thoracolumbar spine 30 degrees or less has been demonstrated. Specifically, as noted above, the range of motion in degrees recorded at the November 2007 VA examination showed 45 degrees of flexion with consideration of functional loss and pain with no evidence of ankylosis. Although his range of motion had decreased since prior examinations, the level of decrease is not enough for a higher rating under the rating criteria in effect. He has not missed any time from work, although he struggles when working longer 12-hour days. He can no longer go for long walks or rides in his car. Although significant, any functional loss present is adequately represented in the 20 percent rating assigned. He does not need a brace or use a cane, and his gait is normal. His factors of functional loss simply do not cause limitation of flexion to 30 degrees or less or anything remotely similar to ankylosis. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 206-207. Under the September 2003 regulations, as to incapacitating episodes and as alluded to above, there is no evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, which is required for a higher 40 percent rating. In summary, from November 16, 2007 onwards, the Board finds that the preponderance of the evidence is against a disability rating higher than 20 percent, under any applicable version of the rating criteria, for the veteran's lumbar spine disability. 38 C.F.R. § 4.3. Hart Consideration Based upon the guidance of the Court in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board has considered whether a further staged rating is appropriate. Here, the Board finds his 20 percent rating granted in this case is only effective from September 4, 2003, the date of receipt of his increased rating claim. In this regard, generally, the effective date of an award for an increase in disability compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a)(b); 38 C.F.R. § 3.400(o)(1). However, an increase in disability compensation may be granted from the earliest date on which it is factually ascertainable that an increase in disability occurred if the claim for an increase is received within one year from such date, otherwise, date of receipt of claim. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Thus, three possible dates may be assigned depending on the facts of the case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)). Harper v. Brown, 10 Vet App 125, 126 (1997) (emphasis added). Here, there is evidence that the increase in disability precedes the claim (September 4, 2003), by more than a year. Hence, the date that the increased rating claim was received (September 4, 2003) is the proper effective date for the 20 percent rating, and the rating should be staged from that date. See 38 C.F.R. § 3.400(o)(2). Analysis - Separate Rating for Right Lower Extremity Radiculopathy/Neuropathy Records show the veteran also has displacement of the S1 right nerve root due to his service-connected IVDS and disc herniation. See November 2007 VA examination report referencing a recent computed tomography (CT) scan; September 2007 private magnetic resonance imaging (MRI) report; and private treatment records of Dr. S. dated in 1999. Despite this evidence, the RO did not assign a separate rating for any right leg neuropathy, which the veteran has reported from time to time. Here, the Board will do so in this case. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a (2007). Under Diagnostic Code 8520, mild incomplete paralysis of the sciatic nerve, and therefore also neuritis and neuralgia of that nerve, warrants a 10 percent rating; moderate incomplete paralysis warrants a 20 percent rating; moderately severe incomplete paralysis warrants a higher 40 percent rating; and severe incomplete paralysis of the sciatic nerve with marked muscular atrophy warrants a 60 percent rating. With complete paralysis of the sciatic nerve, which warrants an 80 percent rating, the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. Id. The words "slight," "mild," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. There is evidence suggestive of "mild" incomplete paralysis of the sciatic nerve warranting an additional 10 percent rating for the right lower extremity. 38 C.F.R. § 4.7. Specifically, a November 2007 VA examination report, a September 2007 private MRI report, and private treatment records of Dr. S. dated in 1999 document right lower extremity radiculopathy, numbness, tingling, and occasional pain. Overall, this evidence is suggestive of only "mild" neuropathy. Absent evidence of weakness, diminished reflexes, bowel or bladder impairment, muscle atrophy, organic changes, or footdrop, a higher rating is not in order. In determining the severity of this rating, the Board also emphasizes it is significant that the October 2003 VA examiner found no evidence of nerve root impingement. However, resolving all reasonable doubt in the veteran's favor, the evidence as a whole nonetheless supports assigning a separate 10 percent disability rating, but no higher, for right lower extremity neuropathy associated with his service- connected lumbar spine disorder. 38 C.F.R. § 4.3. Extra-Schedular Consideration Finally, although it is possible to assign an extra-schedular evaluation, the Board finds no reason to refer the case to the Compensation and Pension Service to consider whether it is warranted. An extra-schedular evaluation under 38 C.F.R. § 3.321(b)(1) may be assigned when there is evidence of exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, to suggest the veteran is not adequately compensated by the regular rating schedule. See VAOPGCPREC 6-96. In this case, there is no evidence of any recent hospitalization associated with the disabilities in question. His treatment has been primarily on an outpatient basis, not as an inpatient. In addition, he is still able to work as a supervisor with the U.S Postal Service. The Board finds no evidence that his disabilities markedly interfere with his ability to work, meaning above and beyond that contemplated by his separate schedular ratings. See, too, 38 C.F.R. § 4.1 indicating that, generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. The standard for extra-schedular consideration is quite high. ORDER Prior to November 16, 2007, a higher 20 percent disability rating for lumbosacral strain and DDD of the lumbar spine is granted, effective from September 4, 2003, subject to the laws and regulations governing the payment of VA compensation. As of November 16, 2007, a disability rating higher than 20 percent for the lumbosacral strain and DDD of the lumbar spine is denied. Also, an initial separate disability rating of 10 percent for neuropathy of the right lower extremity is granted, subject to the laws and regulations governing the payment of VA compensation. REMAND Before addressing the merits of the claims for service connection for bilateral hearing loss, migraine headaches, and tinnitus, and the claim for a higher rating for hypertension, the Board finds that additional development of the evidence is required. First, the RO (AMC) must send the veteran a SOC concerning the claims for service connection for tinnitus and an increased rating for the hypertension. Concerning this, under 38 U.S.C.A. § 7105(a) (West 2002), an appeal to the Board must be initiated by a timely notice of disagreement (NOD) and completed by a substantive appeal (VA Form 9 or equivalent) after a SOC is furnished to the veteran. In essence, the following sequence is required: there must be a decision by the RO, the veteran must express timely disagreement with the decision, VA must respond by explaining the basis of the decision to him, and finally, after receiving adequate notice of the basis of the decision, he must complete the process by stating his argument in a timely-filed substantive appeal. See 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.203 (2007). With respect to a NOD, a written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result will constitute a NOD. 38 C.F.R. § 20.201. While special wording is not required, the NOD must be in terms that can be reasonably construed as a disagreement with that determination and a desire for appellate review. Id. A veteran must file a NOD with a determination by the agency of original jurisdiction (the RO) within one year from the date that the RO mailed notice of the determination. 38 C.F.R. § 20.302(a). In this case, the RO denied service connection for tinnitus and a compensable rating for hypertension in a July 2004 rating decision. The veteran responded by submitting a November 2004 letter, so within one year of notification of that rating decision, expressing his dissatisfaction with it. The RO considered this letter to be a NOD as to the other claims at issue here, but not as to the service connection for tinnitus and a compensable rating for hypertension claims. However, since the November 2004 letter from him addresses his hypertension and tinnitus (described as a "constant ringing"), the Board will liberally construe this statement as tantamount to a timely NOD with regard to these claims. 38 C.F.R. § 20.201. See Gallegos v. Gober, 283 F.3d 1309 (Fed. Cir. 2002) (assuming that the veteran desired appellate review, meeting the requirement of section 38 C.F.R. § 20.201 was not an onerous task). See, too, Acosta v. Principi, 18 Vet. App. 53, 60 (2004); Beyrle v. Brown, 9 Vet. App. 24, 27 (1996); Hamilton v. Brown, 4 Vet. App. 528, 531 (1993) (en banc), aff'd, 39 F.3d 1574, 1584-85 (Fed. Cir. 1994). Furthermore, in a February 2008 Informal Hearing Presentation, the veteran's representative reiterated the veteran's contention that he wished to continue to pursue the service connection for tinnitus and a compensable rating for hypertension claims. The file, however, does not reflect that a SOC has been issued concerning these claims. Where a veteran or his representative has submitted a timely NOD with an adverse decision and the RO did not subsequently issue a SOC addressing the issue, the Board should remand the issue to the RO (via the AMC) - rather than merely referring it there, for issuance of a SOC and to give the veteran an opportunity to perfect an appeal to the Board on this issue by filing a timely substantive appeal (VA Form 9 or equivalent). Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Second, regarding VCAA notice, no letter of record addresses the veteran's claims of service connection for headaches and tinnitus, and his claim for a higher rating for hypertension. The RO (AMC) therefore must send a VCAA notice letter notifying him and his representative of any information or lay or medical evidence not previously provided that is necessary to substantiate the service connection and increased rating claims. The notice should indicate what information or evidence should be provided by the veteran and what information or evidence VA will attempt to obtain on the veteran's behalf. The notice should also ask the veteran to provide any evidence in his possession pertaining to these claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159. With respect to the increased rating claim for hypertension, the VCAA letter should be complaint with the recent case of Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. January 30, 2008). Third, the veteran must be scheduled for a VA examination to obtain a medical opinion concerning the etiology of his current hearing loss, tinnitus, and migraine headache disorders on the basis of in-service incurrence. 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this regard, in certain respects, the earlier June 2004 VA audiology examination may have been inadequate for rating purposes. See Martinak v. Nicholson, 21 Vet. App. 447, 455- 56 (2007) (VA audiology examination must include the effect of the veteran's hearing loss disability on occupational functioning and daily activities). The examiner should be a different examiner than the person who conducted the June 2004 VA audiology examination. This VA examination must also address the current severity of the veteran's hypertension disability. See 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.327(a) (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) ("[W]here the appellant complained of increased hearing loss two years after his last audiology examination, VA should have scheduled the appellant for another examination"). See also Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding 23-month-old examination too remote to be contemporaneous where appellant submitted evidence indicating disability had since worsened). In addition, despite the veteran and his representative's contentions, the National Personnel Records Center (NPRC) indicated in November 2007 that all SMRs had been furnished. There is simply no basis for any further pursuit of any other SMRs in this case, as such efforts would be futile. See 38 C.F.R. § 3.159(c)(2) and (3). Accordingly, these claims are REMANDED for the following development and consideration: 1. Send a VCAA notice letter notifying the veteran and his representative of any information or lay or medical evidence not previously provided that is necessary to substantiate the service connection for tinnitus and migraine headaches claims, and also the increased rating for hypertension claim. This letter must advise the veteran of what information or evidence that he should provide and what information or evidence VA will attempt to obtain on his behalf. The letter must also ask that he provide any evidence in his possession pertaining to these claims. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159. Furthermore, letter should be complaint with the recent case of Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. January 30, 2008). In this regard, the letter should notify the veteran that, to substantiate his claim for a higher rating: (A) he must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the hypertension disability and the effect that worsening has on his employment and daily life; (B) if the Diagnostic Code (DC) under which this condition is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the veteran demonstrating a noticeable worsening or increase in severity of the hypertension disability and the effect of that worsening has on his 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 veteran. In this case, a higher rating for hypertension is possible with medical evidence demonstrating hypertension with diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control; (C) the veteran must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant DCs, which typically provide for a range in severity of a particular disability from 0% to as much as 100% (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; and (D) the notice must also provide examples of the types of medical and lay evidence that the veteran 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. 2. Also provide the veteran a SOC on the issues of his purported entitlement to service connection for tinnitus and a higher, i.e., compensable disability rating for his hypertension. Give him time to perfect an appeal to the Board of these additional claims by filing a timely substantive appeal (VA Form 9 or equivalent). Only if he does should these claims be returned to the Board for further appellate consideration. 3. Have the veteran undergo another appropriate VA examination to determine the nature and etiology of any current bilateral hearing loss, tinnitus, and migraine headache disorders. He is hereby advised that failure to report for his scheduled VA examination, without good cause, may have adverse consequences on these claims. The examination should include any diagnostic testing or evaluation deemed necessary. And the claims file must be made available for review of his pertinent medical and other history - including, in particular, the records of any relevant treatment. Based on a physical examination and comprehensive review of the claims file, the examiner is asked to indicate whether it is at least as likely as not (50 percent or more probable) that any current bilateral hearing loss, tinnitus, and migraine headache disorder is related to the veteran's period of active military service from August 1971 to August 1991. In making this determination, the examiner's attention is specifically directed to SMRs revealing treatment for headaches in March 1988, July and December 1977, and December 1989. For hearing loss, the examiner's attention is specifically directed to SMR audiology testing conducted in November 1974, March 1979, October 1983, November 1989, April 1991, and an undated SMR examination provided in graphic representations without interpretation as to the exact puretone thresholds found. This VA examination must also include a statement as the effect of these disabilities on the veteran's occupational functioning and daily activities. See Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). The examiner should be (if possible) a physician who has not previously examined the veteran. In addition, either this VA examiner or other appropriate VA examiner should determine the current severity of the veteran's hypertension disability. The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should discuss the rationale of the opinion, whether favorable or unfavorable, based on the findings on examination and information obtained from review of the record. If the examiner is unable to provide the requested opinion, please expressly indicate this and discuss why this is not possible or feasible. 4. Then readjudicate the service connection for bilateral hearing loss, tinnitus, and migraine headaches claims and the increased rating for hypertension claim in light of the additional evidence since the December 2007 SSOC. If these claims are not granted to the veteran's satisfaction, send him and his representative another SSOC and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration. The veteran has the right to submit additional evidence and argument concerning the claims the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs