Citation Nr: 0813163 Decision Date: 04/21/08 Archive Date: 05/01/08 DOCKET NO. 04-30 556 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a shortened right leg. 2. Entitlement to service connection for scoliosis. 3. Entitlement to a higher initial rating for service- connected depression, evaluated as 50 percent disabling prior to January 26, 2004, and as 70 percent disabling thereafter. 4. Entitlement to an increased rating for service-connected degenerative disc disease, lumbar spine, currently evaluated as 10 percent disabling. 5. Entitlement to an initial compensable evaluation for service-connected hearing loss. 6. Entitlement to an effective date prior to October 7, 2002 for service connection for depression. ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The veteran served on active duty from May 1996 to May 2001. This appeal arises from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In October 2002, the RO granted the veteran's claim for an increased evaluation for service-connected degenerative disc disease, lumbar spine, to the extent that it increased his evaluation from noncompensable to 10 percent. In February 2003, the RO denied the veteran's claim for service connection for "right leg shorter than left leg," and scoliosis, and granted service connection for depression, evaluated as 50 percent disabling, with an effective date for service connection of October 7, 2002. In March 2003, the RO granted service connection for bilateral hearing loss, evaluated as noncompensable (0 percent disabling). In September 2004, the RO denied a claim for an effective date prior to October 7, 2002 for service connection for depression. In July 2006, the Board remanded the claims for additional development. In November 2007, the RO increased the veteran's evaluation for his depression to 70 percent, with an effective date of January 26, 2004. In July 2004, the veteran indicated on his appeal form (VA Form 9) that he desired a hearing before a Traveling Veterans Law Judge. However, in a statement received by the RO in September 2004, the veteran stated that he wished to withdraw his request for a hearing. See 38 C.F.R. § 20.702(e) (2007). Accordingly, the Board will proceed without further delay. FINDINGS OF FACT 1. The veteran did not sustain a superimposed disease or injury to his congenital shortened right leg, or congenital scoliosis, as the result of his active military service. 2. Prior to January 26, 2004, the veteran's depression has been manifested by complaints of depression, an inability to play with his children as he would like, poor sleep, and marital difficulties, and GAF scores of between 53 and 60; his psychiatric disorder has not resulted in occupational and social impairment with deficiencies in most areas. 3. As of January 24, 2004, the veteran's depression is shown to be manifested by complaints of depression, feelings of hopelessness, helplessness, and worthlessness, an inability to socialize with his children as he would like, poor sleep, and marital difficulties, and GAF scores of 45 and 48, but has not resulted in total occupational and social impairment. 4. Prior to January 6, 2003, the veteran's degenerative disc disease, lumbar spine, is manifested by complaints of pain, with forward flexion to 90 degrees, backward (extension) to 20 degrees, lateral rotation to 30 degrees, (bilaterally), and lateral flexion to 40 degrees; but not moderate limitation of motion; muscle spasm on extreme forward bending nor loss of lateral spine motion unilaterally in a standing position. 5. As of January 6, 2003, the veteran's lumbosacral strain is productive of subjective complaints of pain, stiffness, and weakness; with no more than moderate limitation of motion, but not: listing of whole spine to opposite side, positive Goldthwait's sign, loss of lateral motion with osteo-arthritic changes, or some of the above with abnormal mobility on forced motion, nor favorable ankylosis of the entire thoracolumbar spine or forward flexion of the thoracolumbar spine of 30 degrees or less. 6. The veteran is shown to have level I hearing in his left ear, and level I hearing in his right ear. 7. In February 2003, the RO granted service connection for depression and assigned an effective date for service connection of October 7, 2002. 8. A claim for service connection for depression was received no earlier than October 7, 2002. CONCLUSIONS OF LAW 1. The veteran does not have a shortened right leg, or scoliosis, as a result of active military service, or a service-connected disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2007); VAOPGCPREC 82-90, 55 Fed. Reg. 45711 (1990). 2. Prior to January 26, 2004, the criteria for an evaluation in excess of 50 percent for depression have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.130, Diagnostic Code 9434 (2007). 3. As of January 24, 2004, the criteria for an evaluation in excess of 70 percent for depression have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.130, Diagnostic Code 9434 (2007). 4. Prior to January 6, 2003, the criteria for a rating in excess of 10 percent for degenerative disc disease of the lumbosacral spine have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & 2002); 38 C.F.R. §§ 4.40. 4.45, 4.71a, Diagnostic Codes 5292, 5293, 5295 (2002); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (as in effect September 23, 2002). 5. As of January 6, 2003, the criteria for a rating 20 percent, and no more, for degenerative disc disease of the lumbosacral spine have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 4.40. 4.45, 4.71a, Diagnostic Codes 5292, 5293, 5295 (as in effect prior to September 26, 2003); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (as in effect September 23, 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (as in effect September 26, 2003). 6. The criteria for an initial compensable rating for service-connected bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2007). 7. The legal criteria for an effective date prior to October 7, 2002 for service connection for depression have not been met. 38 U.S.C.A. § 5110(b)(2) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.400 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran asserts that he has scoliosis as a result of his service. He argues that both his scoliosis is not a congenital condition or developmental defect, that it was not discovered until after separation from service, that nobody in his family has this condition, and that "therefore this condition must be service connected." See notice of disagreement, received in April 2003. He further argues that his shortened right leg is not a congenital condition or a developmental defect, and that it is due to his "scoliosis and other back conditions which were sustained during my time in the service." Id. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, when "all of the evidence, including that pertinent to service, establishes that the disease was incurred during service." See 38 C.F.R. § 3.303(d). Service connection may be granted, on a secondary basis, for a disability, which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2007). Similarly, any increase in severity of a nonservice- connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice- connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the nonservice-connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. In cases of aggravation of a veteran's nonservice-connected disability by a service-connected disability, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.322 (2007). The Board notes that 38 C.F.R. § 3.310, the regulation which governs claims for secondary service connection, has been amended recently. The intended effect of this amendment is to conform VA regulations to the Allen decision. 71 Fed. Reg. 52,744 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310(b)). Since VA has been complying with Allen since 1995, the regulatory amendment effects no new liberalization or restriction in this appeal. Claimants are presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that the injury or disease in question existed prior to service and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137. Only such conditions as are recorded in entrance examination reports are to be considered as "noted." Crowe v. Brown, 7 Vet. App. 238, 245 (1994). Congenital or developmental defects are not diseases or injuries within the meaning of applicable VA legislation. 38 C.F.R. § 3.303(c) (2007). VA General Counsel Precedent Opinion has held that service connection may be granted for disease, but not defects, which are congenital, developmental, or familial in origin when the evidence establishes the disorder was incurred in or aggravated by active service. VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990). VA's General Counsel has also expressly stated that the terms "disease" and "defects" must be interpreted as being mutually exclusive. The term "disease" is broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. On the other hand, the term "defects" would be definable as structural or inherent abnormalities or conditions that are more or less stationary in nature. Id. Decisions of the Social Security Administration regarding unemployability, while relevant, are not controlling with respect to VA determinations. See Damrel v. Brown, 6 Vet. App. 242, 246 (1994); Odiorne v. Principi, 3 Vet. App. 456, 461 (1992); Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992). The veteran's service medical records include an entrance examination report, dated in February 1996, which shows that the veteran's lower extremities, and spine, were clinically evaluated as normal. An accompanying "report of medical history," shows that he denied a history of recurrent back pain. See also examination reports, (and accompanying reports of medical history) dated in May 1997 and November 1999 (same). Reports, dated in May 2000, show that he sought treatment for complaints of low back pain that radiated down his legs, of two week's duration. He denied any injury, but indicated that he had recently had a PT (physical training) test, and been lifting rotor blades. He received several treatments for back pain that month, and the reports note that on examination, the left leg was 1/4-inch longer than the right leg. The assessments noted low back strain, rule out HNP (herniated nucleus pulposus) with an S1 nerve root irritations and radiculopathy, and MLBP (mechanical low back pain). He was started on physical therapy, and given medication. He received additional low back treatment in November and December of 2000, and January 2001. A CT (computerized tomography) scan of the lumbar spine, dated in December 2000, was normal. A separation examination report is not of record. A pre-discharge VA spine examination report, dated in January 2001, shows that the veteran complained of backache. The report indicates that he had no postural abnormalities or fixed deformities. The diagnosis was lumbosacral strain. An associated X-ray report for the lumbosacral spine contains an impression of "no significant abnormality." As for the post-service medical evidence, it consists of VA and non-VA reports, dated between 2001 and 2007, and a decision of the Social Security Administration (SSA). VA progress notes, dated between 2002 and 2004, show many complaints of back pain. A January 2002 progress note shows that the veteran complained of back pain, and asserted that he had a leg length discrepancy. The assessment was back pain with radicular symptoms. A January 2002 VA X-ray report for the lumbar spine notes "normal lumbar spine." A February 2002 progress note shows that the examiner stated that he had been requested to evaluate the veteran for a leg length discrepancy and back pain, which the veteran stated had been confirmed by X-ray during service. The report notes that there was no pelvic obliquity. The impression was back pain. A February 2002 VA magnetic resonance imaging (MRI) study contains an impression of "very mild scoliosis of the lumbar spine showing convexity to the right, no evidence of bone or joint involvement." A February 2002 VA MRI report for the pelvis contains an impression noting that the right iliac crest was one centimeter higher than the left. A March 2002 progress note shows that there was no leg length discrepancy when measured using the true length measurements," that there was no pelvic obliquity, and that ambulation was normal. The impression was back pain. Progress notes dated thereafter show a number of treatments for low back pain, with notations of chronic back pain. A VA examination report, dated in October 2002, notes that the examiner was requested to evaluate the veteran's claim that one leg was shorter than the other. The examiner stated that, "To my review, no significant scoliosis is identified clinically." He further stated, "I evaluated the veteran also for a leg length discrepancy with the veteran standing with visible and palpable measurements of the posterior iliac crest with the veteran standing, there does not appear to be any significant leg length discrepancy." Such findings provide highly probative evidence against this claim. The report notes that X-rays of the lumbar spine taken in February 2002 had shows "very mild scoliosis with convexity to the right." The diagnosis noted chronic mechanical low back pain with underlying degenerative disc changes, and, "I found no clinical evidence of leg length discrepancy of the lower extremities. The veteran does have some very mild scoliosis of the lumbar spine which is not apparent clinically, but it is apparent radiographically." A VA examination report, dated in January 2003, shows that the examiner stated that there was no physical evidence of scoliosis, although he noted that there was evidence of minor scoliosis by history. The examiner further noted that the veteran had a 1/2-inch to 3/4-inch angulation on the ilium to the right. The examiner indicated that it was probable that the aggravation of the lumbosacral spine was due to the discrepancy in the leg length, and that inserts may help alleviate these symptoms. Reports from the Geneva Medical Group (GMC), dated in December 2003 and March 2004, show treatment for back symptoms, with diagnoses of degenerative disc disease, lumbar pain, scoliosis, and degenerative arthritis of the lower back. A March 2004 X-ray report notes degenerative changes with spondylolithesis at L4, L5, and S1. A decision of the SSA, dated in August 2004, shows that the SSA determined that the veteran was disabled as of May 2001, with severe hearing loss, degenerative disc disease, knee problems, and depression. An October 2004 SSA decision notes that the veteran's primary diagnosis was "disorders of the back (discogenic and degenerative)," and that his secondary diagnosis was "affective; or mood disorders." A VA examination report, dated in July 2007, notes thoracic kyphosis, thoracolumbar scoliosis, and short right leg, "all congenital." The report indicates that the veteran's scoliosis and shortened right leg were not caused by his degenerative disc disease of the lumbar spine, providing more evidence against these claims. The veteran's February 1996 entrance examination report shows that the veteran's lower extremities, and spine, were clinically evaluated as normal. Given the foregoing, a shortened right leg, and scoliosis, were not "noted" upon entrance to service, and the presumption of soundness applies. See Crowe v. Brown, 7 Vet. App. 238, 245 (1994). However, the July 2007 VA examination report states that both of these conditions are congenital. This opinion is clear and unmistakable evidence that both of the claimed conditions (assuming both exist) pre-existed the veteran's service. In any event, the claims must be denied because service connection may be granted for congenital defects, and there is no competent evidence to show that the veteran's shortened right leg, or scoliosis, was subject to a superimposed disease or injury. VAOPGCPREC 3-2003, 69 Fed. Reg. 25178 (2004). In this regard, although service connection is in effect for degenerative disc disease of the lumbar spine, the July 2007 VA examiner specifically determined that neither the shortened right leg, nor scoliosis, were caused by his lumbar degenerative disc disease. With regard to the veteran's claim that these conditions were caused or aggravated by his service-connected degenerative disc disease of the lumbar spine, there is no competent evidence in support of this assertion. See 38 C.F.R. § 3.310. Further, the Board finds that the post-service medical record provides evidence against such a finding, clearly indicating no association between service and the disorders at issue. Accordingly, the Board finds that the preponderance of the evidence is against the claims, and that the claims must be denied. With respect to the veteran's own contentions, a layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Unlike varicose veins under Barr, or a dislocated shoulder under Jandreau, the issues on appeal are based on the contentions that a shortened right leg, and scoliosis, are not congenital in nature, and were discovered after service, but are nevertheless related to service or a service- connected disability, and these are not contentions capable of lay diagnosis. See Espiritu; Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Furthermore, when the veteran's service medical records (which do not show that he was ever found to have a shortened right leg, or scoliosis, and do not show that he sustained a superimposed disease or injury to either of the claimed conditions) are considered in conjunction with the post- service medical record (which shows that the claimed conditions are congenital, and which do not contain competent evidence to show or indicate that they were caused or aggravated by a service-connected disability), the Board's finds that the medical evidence outweighs the veteran's contention that he has a shortened right leg, and scoliosis that are not congenital, and that are related to his service, or a service-connected disability. The veteran argues that he is entitled to an increased rating for service-connected depression, evaluated as 50 percent disabling prior to January 26, 2004, and as 70 percent disabling thereafter. The veteran was not treated for psychiatric symptoms during service. Rather, in February 2003, the RO granted service connection for depression, on the basis that it was caused by his service-connected low back condition. The RO evaluated his depression as 50 percent disabling, with an effective date for service connection of October 7, 2002. The veteran appealed the issue of entitlement to an initial evaluation in excess of 50 percent. In November 2007, the RO increased the veteran's evaluation for his depression to 70 percent, with an effective date of January 26, 2004. However, since this increase did not constitute a full grant of the benefit sought, the increased initial evaluation issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). With regard to the history of the disability in issue, see 38 C.F.R. § 4.1 (2007), the veteran did not receive treatment for psychiatric symptoms during service. Prior to the date of service connection, the only relevant medical evidence is an examination report, dated in August 2002, by R.E.O.H., Ph.D., that was apparently undertaken in association with the veteran's SSA claim. This report shows that the veteran complained that he could not get on the floor and play with his children due to back pain. He also complained that he quit his job after one month due to back pain. The Axis I diagnosis was major depressive disorder, moderate to severe. The Axis V diagnosis was a GAF score of 52 (current) and 54 (high for the past year). The veteran is appealing the original assignment of a disability evaluation following an award of service connection. In such a case, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Disability evaluations are determined by comparing the veteran's present symptomatology with the criteria set forth in the VA's Schedule for Ratings Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4. The RO has evaluated the veteran's depression under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9434. Under DC 9434, a 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: Flattened affect; circumstantial, circumlocutory, or stereotype speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances or motivation in mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted where there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as: Suicidal ideations; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted where there is total occupational and social impairment, due to such symptoms as: Gross impairment in thought processes or communication; persistent delusions or hallucinations; gross inappropriate behavior; persistent danger of hurting oneself or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. Part 4, Diagnostic Code 9411. The Global Assessment of Functioning (GAF) scale is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994). A GAF score between 41 and 50 suggests serious symptoms or any serious impairment in social, occupational or school functioning. GAF scores between 51 and 60 are reflective of moderate symptoms (e.g., flat effect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupation, or school functioning, e.g., few friends, conflicts with peers or coworkers). See Quick Reference to the Diagnostic Criteria from DSM-IV at 47 (American Psychiatric Association 1994) ("QRDC DSM-IV"). Prior to January 26, 2004, the relevant medical evidence consists of a VA examination report, dated in January 2003, and an August 2003 VA progress note. The VA examination report shows that the veteran complained of back pain, feeling withdrawn, and being depressed. He also complained that he could not get a job, that he slept poorly, and that he lost interest in activities that he used to do. He complained that he was "stressed" that he cannot play actively with his children, that he feels like giving up, and that he has passive suicidal thoughts, but no serious attempts. He stated that he lived alone and that he had been separated from his wife for five months, stating that his wife cannot deal with his "not caring." On examination, he was alert and oriented times three. There was mild psychomotor retardation. Speech was slow and monotonous tone. He was verbal and logical, with no evidence of acute psychotic symptoms. Mood was anxious and depressed. Affect was flat and blunted He claimed to have passive thoughts of suicide, but denied plans or intent. He denied homicidal thoughts. Short-term memory was "down," and coping abilities were fair. The Axis I diagnoses were mood disorder secondary to back problems with chronic pain, with depressive features, rule out major depressive disorder, mild, recurrent, with no psychotic symptoms. The Global Assessment of Functioning score was "53-55 range." The examiner noted moderate and significant impairments in areas of social and industrial functioning. The August 2003 VA progress note shows that the veteran complained that he did not have a warm and intimate relationship with his wife, that he could not play with his children the way he wanted, and that he had argued with his wife because he refused to go waterskiing the week before. He stated that after he argued with his wife he went to a bar and got into a fight. He stated he was five credits away from his bachelor's degree, "and is grieving for that, but his having trouble seeing what he has left." He reported having "fleeting suicidal thoughts, not very often, mainly when he gets angry." He stated that he never thought seriously or formulated any plan to kill or harm anyone else. Memory was noted to appear grossly intact, and speech was goal-directed. Mood was depressed and he appeared sad. Thoughts were coherent and logical and there was no evidence of any thought disorder. The assessment was depression, and the GAF score was 60. The Board finds that an evaluation in excess of 50 percent prior to January 26, 2004 is not warranted. The veteran's symptoms are not sufficiently severe to have resulted in occupational and social impairment with reduced reliability and productivity, and the Board has determined that the preponderance of the evidence shows that the veteran's depression more closely resembles the criteria for not more than a 50 percent rating. The veteran is shown to have primarily complained of depression, as well as a number of marital problems. He has repeatedly blamed his back condition for a wide variety of other problems. His depression was assigned GAF scores of between 53 and 55, and 60, which suggest serious to moderate symptoms. As of January 26, 2004, the relevant medical evidence consists of VA examination reports, dated in January 2004, July 2007, and September 2007. VA progress notes show treatment for other symptoms, but are remarkable for notations of major depressive disorder and tobacco use disorder. The January 2004 VA examination report indicates that the examination was performed on January 26, 2004. This report was the basis for the RO's increase in the veteran's evaluation to 70 percent. This report shows that the veteran complained that he could not play with his children the way he wanted to, due to back pain. He further complained that he could not work due to back pain. He also complained of poor sleep, poor concentration, low energy, feeling worthless, and that, "he no longer has interest in doing anything." He reported having suicidal ideation with no plan or intent. He denied psychiatric hospitalizations over the past year. He complained that he avoided people and spent a lot of time alone, and that he spends most of his days "fiddling around the house trying to find something to do." He stated that he was drinking two cases of beer per week, and that he had been in a fight three weeks before. He denied homicidal ideation. The examiner noted that the veteran had been referred to a social worker for therapy, but that he had not followed up. He complained that he had no meaningful relationships except with his father. On examination, he was alert and oriented times four. He was moderately groomed and minimally cooperative. Mood was dysphoric and affect was completely flat. Thought content and processes were within normal limits. There was no evidence of delusions or hallucinations. There was no evidence of gross memory loss or impairment. Speech was linear and coherent, and speech production was normal. The examiner noted severe chronic depression that had left him significantly disabled. The examiner noted that he was not receiving adequate treatment for his depression, and noted that he did not have a significant impairment in judgment. The Axis I diagnosis was depressive disorder, single episode, chronic, severe without psychotic features, rule out alcohol abuse. The Axis V diagnosis was a GAF score of 45, current. A July 2007 VA spine examination report notes that the veteran was alert and oriented times three, with appropriate behavior, apparent comprehension, and coherent answers. Affect was flat. The September 2007 VA examination report shows that the veteran stated that his condition was the same as it was at the time of his January 2004 examination report. He complained that he still experience anxiety and depression, and that "nothing much has changed except that his back problems continue to plague and bother him more." He stated that his activities "revolved around his back problems," and the report notes that he claimed he was unemployed and "not able to do a lot of things." He complained that he felt chronically hopeless and helpless, and that he felt inadequate and worthless. He complained that he was resentful of his teenage children because they were active and "he cannot be very much involved with them." He reported sleep difficulties, that he didn't want to deal with people, irritability, declining sex drive, and that his wife was platonic and distant. He was noted to be taking Robaxin and Lortab, but not to be receiving any psychiatric care. He stated he drank alcohol three to four times a week. On examination, he was alert and oriented times three. He was fairly groomed. He appeared sad and withdrawn, irritable, and frustrated. Affect was dysphoric and flat. Cognitive functions were within normal range. Insight and judgment were fair. There was no evidence of hypomanic symptoms. The Axis I diagnosis was major depressive disorder, moderate, recurrent, without psychotic features (secondary to back problems). The Axis V diagnosis was a GAF score of 48. The Board finds that as of January 26, 2004, an evaluation in excess of 70 percent is not warranted. The veteran's GAF scores were 45 and 48, which show serious impairment, but are not per se evidence of total occupational and social impairment. The evidence shows that he failed to follow up on recommended psychiatric treatment, and that he is not receiving psychiatric treatment, other than medication. In addition, there is no evidence of gross impairment in thought processes or communication, persistent delusions or hallucinations, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. In this case, the veteran primarily complains of feeling depression, as well as hopeless, helpless, inadequate, and worthless. He complained that he spends most of his days "fiddling around the house trying to find something to do." He repeatedly lamented that his back prevented him from working or functioning normally. However, both examination reports show that the veteran was well-oriented. His thought content and processes were within normal limits. There is no evidence of delusions, hallucinations, gross memory loss or impairment. Speech was essentially normal. In summary, the evidence does not show that he has psychiatric symptoms that are shown to be so severe as to warrant a total disability rating. It is important for the veteran to understand that the evidence does not clearly support the currently evaluations, let alone higher evaluations. To the extent that the RO has assigned a total rating on the basis of individual unemployability due to service- connected disability (TDIU), effective as of January 26, 2004, this was apparently based on the combined effects of depression and back symptoms, and the record included a September 2007 VA opinion stated that he could not work due to hearing loss. Based on the foregoing, the Board finds that the evidence shows that the veteran does not have total occupational and social impairment due to his depression, and that the Board has determined that the preponderance of the evidence is against the claim that the veteran is totally impaired due to psychiatric symptoms. The Board therefore finds that overall, the veteran's disability is not manifested by symptomatology that approximates, or more nearly approximates, the criteria for a 100 percent rating under DC 9434. See 38 C.F.R. § 4.7. The veteran argues that he is entitled to an increased rating for service-connected degenerative disc disease, lumbar spine, currently evaluated as 10 percent disabling. With regard to the history of the disability in issue, see 38 C.F.R. § 4.1, the Board's discussion of the veteran's back symptoms in the analysis of his claim for scoliosis, and a shortened right leg, supra, is incorporated herein. In November 2001, the RO granted service connection for lumbosacral strain, evaluated as noncompensable (0 percent disabling). There was no appeal, and the RO's decision became final. See 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2005). In February 2002, the veteran filed a claim for a compensable rating. In October 2002, the RO granted the claim to the extent that it increased his evaluation to 10 percent, with an effective date for the 10 percent rating of May 22, 2001. The veteran has appealed. Under 38 C.F.R. § 4.71a, DC 5292 (as in effect prior to September 26, 2003), a 20 percent rating is warranted for moderate limitation of motion. The Board finds that the criteria for a rating of 20 percent have been met. An examination report, apparently completed in association with the veteran's claim for SSA benefits, dated in January 2003 (hereinafter "SSA examination report"), indicates that the examination was performed on January 6, 2003. This report shows that he had forward flexion to 30 degrees, extension to 30 degrees, lateral rotation to 30 degrees (bilaterally), and lateral flexion to 30 degrees (bilaterally). Although it appears that a significantly greater range of motion was demonstrated just nine days later, in a VA examination report from an examination that took place of January 15, 2003, affording the veteran the benefit of all doubt, the Board finds that the demonstrated ranges of motion are representative of a moderate limitation of motion. Accordingly, the Board finds that the criteria for a 20 percent rating are met as of that date, and that a 20 percent rating is warranted under DC 5292 as of January 6, 2003. A rating in excess of 10 percent is not warranted prior to January 6, 2003. With regard to DC 5292, the only recorded ranges of motion are found in an October 2002 VA examination report, which shows that the lumbar spine had forward flexion to 90 degrees, backward (extension) to 20 degrees, lateral rotation to 30 degrees, (bilaterally), and lateral flexion to 40 degrees. In the Board's judgment, these demonstrated ranges of motion are not representative of a moderate limitation of motion. DC 5292. Prior to January 6, 2003, a rating in excess of 10 percent is not warranted under any other diagnostic code. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Under DC 5293 (as in effect prior to September 23, 2002), a 20 percent rating is warranted for moderate intervertebral disc syndrome (IDS) with recurring attacks. The Board finds that prior to January 6, 2003, that the evidence does not show that the veteran has IDS to the required degree, and that the criteria for a rating in excess of 10 percent have not been met under DC 5293. VA progress notes, dated in 2002, show complaints of back pain with radicular symptoms to the left leg. The October 2002 VA spine examination report notes that a February 2002 VA MRI study revealed "very early degenerative disc changes of the lower three lumbar vertebrae and the lower two thoracic vertebrae without any focal disc herniations or protrusions, and no evidence of stenosis." The diagnosis noted mechanical low back pain with history of lumbar strain, and underlying degenerative disc changes. In summary, despite the veteran's constant complaints, the evidence does not show that he was ever diagnosed with IDS, and the evidence is insufficient to show that that he had moderate IDS with recurring attacks. Accordingly, the criteria for a rating in excess of 10 percent under DC 5293 (as in effect prior to September 23, 2002) are not shown to have been met prior to January 6, 2003. Under 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2002), a 20 percent rating is warranted for lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. However, the aforementioned October 2002 VA spine examination report does not show that the veteran had muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position, nor is there any other medical evidence to show that these symptoms were present. Accordingly, the criteria for a rating in excess of 10 percent under DC 5295 are not shown to have been met prior to January 6, 2003. The Board further notes that, as discussed below, the schedular criteria by which the veteran's lumbar spine disability can be rated have changed twice during the pendency of the appeal. At this point in the analysis, the Board will simply note that under 38 C.F.R. § 4.71a, DC 5293 (effective September 23, 2002), a 20 percent rating is warranted for IDS, with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. In this case, the aforementioned evidence does not show that he was ever diagnosed with IDS prior to January 6, 2003, and the evidence is insufficient to show that he had incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. The Board therefore finds that the criteria for a rating in excess of 10 percent under DC 5293 (as in effect September 23, 2002), and DC 5295, have not been met prior to January 6, 2003. With respect to possibility of entitlement to an increased evaluation under 38 C.F.R. §§ 4.40, 4.45, the Board has also considered whether an increased evaluation could be assigned on the basis of functional loss due to the veteran's subjective complaints of pain. See DeLuca v. Brown, 8 Vet. App. 202, 204-205 (1995); VAOPGCPREC 36-97, 63 Fed. Reg. 31,262 (1998). In this regard, the Board initially notes that the veteran's subjective complaints of pain are specifically contemplated in the criteria of DC 5295. As for DC's 5292 and 5293, while the veteran repeatedly complained of pain, a January 2002 VA progress note indicates that he could walk on his heels and toes. A March 2002 VA progress note states that ambulation was normal, with normal motor function and reflexes. The October 2002 VA examination report shows that although he complained of pain on motion, his motor strength was 5/5 and that he could walk on his tiptoes and heels, with difficulty. He walked without antalgic gait, and there was no swelling, spasm, discoloration, or increased warmth. There were no findings to show sensory deficits, and the evidence does not otherwise show functional loss due to pain to warrant a rating in excess of 10 percent. In particular, the Board notes the lack of such findings as neurological impairment, loss of strength, incoordination, and/or muscle atrophy. In summary, when the ranges of motion in the back are considered together with the evidence showing functional loss -- to include the findings pertaining to neurologic deficits, muscle strength, and the lack of evidence of muscle atrophy -- the Board finds that there is insufficient evidence of objective pain on motion, or any other functional loss, to warrant a rating in excess of 10 percent prior to January 6, 2003. 38 C.F.R. § 4.71a, DC's 5292 and 5293; DeLuca. As of January 6, 2003, a rating in excess of 20 percent is not warranted. With regard to DC 5292, under 38 C.F.R. § 4.71a, DC 5292 (as in effect prior to September 26, 2003), a 40 percent rating is warranted where the limitation of motion in the lumbar spine is severe. The Board finds that a rating in excess of 20 percent under DC 5292 is not warranted. In addition to the previously discussed January 2003 SSA examination report, the evidence includes a January 2003 VA examination report, which indicates that the examination was performed on January 15, 2003. This report shows that on examination, the lumbar spine notes that he had "good range of motion in the lower back" with "right and left range" (presumably, lateral rotation) of 45 degrees (specific degrees of flexion and extension were not provided, although pain was noted at 30 degrees of flexion, with no pain on extension). The July 2007 VA examination report shows that he had forward flexion to 70 degrees, extension to 20 degrees, lateral rotation to 45 degrees (bilaterally), and lateral flexion to 30 degrees (bilaterally). In summary, in the Board's judgment, the demonstrated ranges of motion are not representative of a severe limitation of motion. Of particular note, the Board has weighed the ranges of motion in the January 2002 SSA and VA examination reports, and finds that when this evidence in viewed in context with demonstrated ranges of motion in the July 2007 VA examination report, that that the preponderance of the evidence shows that the criteria for a 40 percent rating under DC 5292 (as in effect prior to September 26, 2003) have not been met. Under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5295 (as in effect prior to September 26, 2003), a 40 percent rating is warranted when there is severe lumbosacral strain, with listing of whole spine to opposite side, positive Goldthwait's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo- arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. The Board finds that a rating in excess of 20 percent is not warranted under DC 5295. The ranges of motion, and the X-ray and MRI evidence, have previously been discussed, and there is evidence of degenerative disc disease. However, the evidence is insufficient to show listing of whole spine to opposite side, positive Goldthwait's sign, loss of lateral motion with osteo-arthritic changes, or some of the above with abnormal mobility on forced motion. Based on the foregoing, the Board finds that overall, the evidence does not show that the veteran's low back disorder is manifested by symptomatology that more nearly approximates the criteria for an evaluation of 40 percent under DC 5295, and that the preponderance of the evidence is against a 40 percent evaluation. Under 38 C.F.R. § 4.71a, DC 5293 (as in effect September 23, 2002), a 40 percent rating is warranted for IDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. The January 2003 SSA examination report shows that no paravertebral spasm was found, and that sensation was intact in the lower extremities. Reflexes were 2/4 at the patellae and Achilles tendon, with no atrophy in the lower extremities, and normal muscle tone. The diagnosis was back pain, with a notation that VA had diagnosed degenerative disc disease and scoliosis. The January 2003 VA examination report notes that there were no obvious neurological findings. There was no diagnosis. Two GMC reports, dated in December 2003 and March 2004, show diagnoses of degenerative disc disease. These reports note muscle spasm on examination, with no focal deficits on neurological examination. A July 2007 VA examination report contains diagnoses of flattening of thoracic kyphosis, thoracolumbar scoliosis, and short right leg, as well as lumbar degenerative disc disease with L5-S1 radiculitis. The report notes the following: there were no palpable spasms or tenderness; there was no atrophy or hypertrophy; he had bilaterally equal sensation to pinprick and light touch; he had 2+/4 equal, bilateral deep tendon reflexes at the patellae, and 1+ at the Achilles; he had normal toe walking, heel walking, and heel-to-toe walking. In summary, there are no findings of neurological impairment warranting a 40 percent rating, and the Board finds that the criteria for a 40 percent rating under DC 5293 (as in effect September 23, 2002), have not been met. With respect to possibility of entitlement to an increased evaluation under 38 C.F.R. §§ 4.40, 4.45, the Board has also considered whether an increased evaluation could be assigned on the basis of functional loss due to the veteran's subjective complaints of pain. DeLuca; VAOPGCPREC 36-97. With regard to DC's 5292 and 5293, while the veteran has repeatedly complained of pain, the January 2003 SSA report shows the following: he was able to walk normal step, height, and length, without deviation from straight line, he had minimal squat, he had satisfactory tandem/heel to toe, he had strength of 4/5 on the left, and 5/5 on the right, and there was no atrophy in the lower extremities. The January 2003 VA examination report indicates that there were no obvious neurological findings. The July 2007 VA examination report shows the following: his motor strength was 4.5/5 on the left, and 5/5 on the right in the lower extremities; there was no atrophy; he had bilaterally equal sensation to pinprick and light touch; he had 2+/4 equal, bilateral deep tendon reflexes at the patellae, and 1+ at the Achilles; and he had normal toe walking, heel walking, and heel-to-toe walking. In summary, the evidence does not show functional loss due to pain to warrant a rating in excess of 20 percent. In particular, the Board notes the lack of such findings as neurological impairment, loss of strength, incoordination, and/or muscle atrophy. In summary, when the ranges of motion in the back are considered together with the evidence showing functional loss -- to include the findings pertaining to neurologic deficits, muscle strength, and the lack of evidence of muscle atrophy -- the Board finds that there is insufficient evidence of objective pain on motion, or any other functional loss, to warrant a rating in excess of 20 percent. 38 C.F.R. § 4.71a, DC 5292; DeLuca. The schedular criteria by which the veteran's lumbar spine disability can be rated have changed twice during the pendency of the veteran's appeal. See 67 Fed. Reg. 54345- 54349 (August 22, 2002) (effective September 23, 2002), codified at 38 C.F.R. § 4.71a, Diagnostic Code 5293; see also 68 Fed. Reg. 51454- 51458 (August 27, 2003) (effective September 26, 2003), codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. The Board notes that the provisions of DC 5293 (which pertained to intervertebral disc syndrome) were changed effective from September 23, 2002. In addition, effective from September 26, 2003, the rating schedule for the spine was changed, at which time DC 5293 was changed to DC 5243, and DC 5290 was changed to DC 5237. According to VAOPGCPREC 7-2003 (Nov. 19, 2003), in Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003), the Federal Circuit overruled Karnas v. Derwinski, 1 Vet. App. 308 (1991), to the extent it conflicts with the precedents of the United States Supreme Court (Supreme Court) and the Federal Circuit. Karnas is inconsistent with Supreme Court and Federal Circuit precedent insofar as Karnas provides that, when a statute or regulation changes while a claim is pending before VA or a court, whichever version of the statute or regulation is most favorable to the claimant will govern unless the statute or regulation clearly specifies otherwise. Accordingly, the rule adopted in Karnas no longer applies in determining whether a new statute or regulation applies to a pending claim. Id. However, none of the above cases or General Counsel opinions prohibits the application of a prior regulation to the period on or after the effective date of a new regulation. Thus, the rule that the veteran is entitled to the most favorable of the versions of a regulation that was revised during his appeal allows application of the prior versions of the applicable diagnostic codes at 38 C.F.R. § 4.71a to the period on or after August 22, 2002 and September 23, 2002 (i.e., the effective dates of the new regulations). Therefore, the Board will address whether: (1) the veteran is entitled to a higher rating under the old criteria and (2) whether, for the period on and after September 23, 2002, and September 26, 2003, the veteran is entitled to a higher rating under either the old or the new criteria. The effective date of any rating assigned under the revised schedular criteria may not be earlier than the effective date of that change; the Board must apply only the earlier version of the regulation for the period prior to the effective date of change. VAOPGCPREC 3-2000, 65 Fed. Reg. 33,421 (2000). Under 38 C.F.R. § 4.71a (as in effect September 26, 2003), DC 5237 (lumbosacral strain), DC 5242 (degenerative arthritis of the spine) (see also DC 5003), and DC 5243 (intervertebral disc syndrome) are all rated under the "General Rating Formula for Diseases and Injuries of the Spine." The General Rating Formula provides that a 40 percent evaluation is warranted for favorable ankylosis of the entire thoracolumbar spine or forward flexion of the thoracolumbar spine of 30 degrees or less. In addition, the regulation provides that intervertebral disc syndrome may be rated under either the General Rating Formula or the "Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes", whichever results in a higher rating. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that a 40 percent rating is warranted for intervertebral disc syndrome, with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 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 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 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. The Board finds that a 40 percent rating is not warranted. The only recorded ranges of motion dated on or after the effective date for the General Rating Formula, i.e., September 26, 2003, (see VAOPGCPREC 3-2000), are found in the July 2007 VA examination report, which shows that the veteran had forward flexion to 70 degrees. There is no evidence to show that he has favorable ankylosis of the entire thoracolumbar spine. Nor is the evidence sufficient to show that he has muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour. In this regard, the July 2007 VA examination report notes that the veteran has congenital thoracic kyphosis, a congenital short right leg, and congenital scoliosis, and that there were no spasms on examination. His gait was "slightly broad-based due to discomfort." In addition, the evidence is insufficient to show that the veteran has any associated neurological abnormalities. See General Rating Formula, Note 1. Accordingly, the Board finds that a rating in excess of 20 percent is not warranted under the General Rating Formula. 38 C.F.R. § 4.71a, DC 5237. In deciding the veteran's increased evaluation claim for his lumbar spine, the Board has considered the determination in Hart v Mansfield, 21 Vet. App. 505 (2007), and whether the veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. The evidence of record supports the conclusion that the veteran is not entitled to additional increased compensation at any time within the appeal period, except as noted. The Board therefore finds that the evidence is insufficient to show that the veteran had a worsening of the disability in issue, such that an increased evaluation is warranted, except as noted. The veteran asserts that he is entitled to an initial compensable evaluation for service-connected hearing loss. In March 2003, the RO granted service connection for bilateral hearing loss, evaluated as noncompensable, with an effective date for service connection of October 7, 2002. The veteran has appealed the issue of entitlement to an initial compensable rating. In evaluating service-connected hearing impairment disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by pure tone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. The rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. VA audiological examinations are conducted using a controlled speech discrimination test together with the results of a pure tone audiometry test. The vertical lines in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the pure tone decibel loss. See 38 C.F.R. §§ 4.85(b), 4.87. The regulations provide that in cases of exceptional hearing loss, i.e. when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. See 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) provide that when the puretone threshold is 30 decibels or less at 1,000 hertz, and 70 decibels or more at 2,000 hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results is the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. As will be apparent from the evidence described below, neither 38 C.F.R. § 4.86(a) nor (b) is applicable in this appeal. A VA audiological examination report, dated in January 2003, notes that the veteran reported having difficulty hearing people, and that he had to turn up his television. The report notes moderate to severe hearing loss between 1,000 Hz and 4,000 Hz for both AD (right ear) and AS (left ear). The report contains audiometric findings that revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT N/A 40 30 65 70 LEFT N/A 35 30 70 80 These results show an average decibel loss of 51 in the right ear and 53 in the left ear. Speech recognition ability was 100 percent, right ear, and 98 percent, left ear. A VA audiological examination report, dated in August 2007, notes that the veteran reported having difficulty hearing, particularly in the presence of background noise. The report notes mild to severe sloping sensorineural hearing loss between 500 Hz and 8,000 Hz bilaterally. The report contains audiometric findings that revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT N/A 40 30 70 75 LEFT N/A 35 30 75 85 These results show an average decibel loss of 54 in the right ear and 56 in the left ear. Speech recognition ability was 92 percent, bilaterally. These test results show that the veteran's hearing in the left ear, and the right ear, is consistent with level I hearing. See 38 C.F.R. § 4.85. As such, a compensable rating is not warranted. Id., Tables VI and VII. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and the claim must be denied. The veteran asserts that he is entitled to an effective date prior to October 7, 2002 for service connection for depression. He argues that the correct effective date should be May 22, 2001 (i.e., the day after separation from service), "due to the fact that during my last two years in the military I was unable to perform the job that I was trained for and unable to attend any other military training." Generally, the effective date of an award of a claim is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400 (emphasis added). If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400(b)(2). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (2007). Any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a) (2007). In this case, on October 7, 2002, the veteran filed a claim for service connection for "severe PTSD" (post-traumatic stress disorder). In February 2003, the RO essentially determined that he did not have PTSD, but granted service connection for depression, as secondary to service-connected disability. See 38 C.F.R. § 3.310. The RO assigned an effective date for service connection for depression of October 7, 2002. The Board finds that the claim must be denied. The Board finds no legal basis for awarding service connection for depression prior to October 7, 2002. Specifically, there is no evidence of a formal claim or written intent to file a claim for service connection for depression that is dated prior to October 7, 2002. See 38 C.F.R. § 3.155. Accordingly, the preponderance of the evidence is against the claim, and the claim must be denied. The Duty to Assist The Board finds that VA has satisfied its duties to the veteran under the Veterans Claims Assistance Act of 2000 (VCAA). A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." This "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112 (2004). In August 2001 (service connection for a low back injury), April 2002 (service connection for a shortened right leg, and scoliosis, and increased rating for lumbar spine disability), August 2002 (increased rating for lumbar spine disability), November 2002 (service connection for a shortened right leg, scoliosis, and bilateral hearing loss, and increased rating for lumbar spine disability), June 2003 (service connection for a shortened right leg, scoliosis, and bilateral hearing loss, and increased rating for lumbar spine disability, and higher initial evaluation for depression), and August 2006 (all claims), the RO sent the veteran notice letters (hereinafter "VCAA notification letters") that informed him of his and VA's respective responsibilities for obtaining information and evidence under the VCAA. He was asked to identify all relevant evidence that he desired VA to attempt to obtain. With the exception of the August 2006 VCAA letter and the claim for an earlier effective date for service connection for depression, the VCAA notification letter were sent before the initial AOJ decisions. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. Apr. 5, 2006). In this regard, the claim for an earlier effective date for service connection for depression did not require a VCAA letter prior to adjudication. Specifically, a veteran claiming entitlement to an earlier effective date is not prejudiced by failure to provide a VCAA notice if, based on the facts of the case, entitlement to an earlier effective date is not shown as a matter of law. See Nelson v. Principi, 18 Vet. App. 407, 410 (2004) (per curium). During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. No further notice is needed as to any disability rating or effective date matters. The veteran was afforded sufficient notice in August 2006. To the extent that the claims have been denied, no disability rating or effective date will be assigned; and any defect with respect to the content of the notice requirement was non-prejudicial. Therefore, VA's duty to notify the appellant has been satisfied. To the extent that the claim for an increased rating for degenerative disc disease of the lumbar spine has been granted, any error in the failure to provide notice involving the downstream elements of rating and effective date is harmless at this time, and can be corrected by the RO following the Board's decision. With regard to the claims for higher initial evaluations (depression and bilateral hearing loss), the Court, in Dingess, also stated the following: 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 was intended to serve has been fulfilled. Id. at 491. Furthermore, the Court stated that once a claim for service connection has been substantiated, the filing of a notice of disagreement with the RO's decision does not trigger additional § 5103(a) notice. Id. at 493. While the veteran has not claimed that VA has not complied with the notice requirements of the VCAA, § 5103(a) and § 3.159(b)(1) are no longer applicable in the instant case. Service connection was granted in February 2003 (depression), and March 2003 (bilateral hearing loss), a disability rating was assigned, and an effective date was established. Therefore the veteran's claims were substantiated as of February 2003 and March 2003. Any error in failing to provide §5103(a) notice could not be prejudicial to the veteran because the purpose of §5103(a) notice is to provide notice of what is required for the veteran to substantiate his claims, and here, his claims have been substantiated. See Id. (holding that the Board does not commit prejudicial error in concluding that a VCAA-notice letter complied with § 5103(a) and § 3.159(b), where a claim for service connection has been substantiated, because such notice is not required). The Court also found that once a claim for service connection is substantiated VA's statutory duties are specified under § 5104 and § 7105, and applicable regulatory duties are found at 38 C.F.R. § 3.103. Id. VA satisfied these duties by issuance of complying rating decision in February 2003 and March 2003, the May 2004 statement of the case, and the November 2007 supplemental statement of the case. The veteran was afforded the opportunity for a hearing, but did not request one. With regard to the claim for an increased rating for a lumbar spine disability, the VCAA notices did not discuss the criteria for an increased rating, thus, the VCAA duty to notify has not been satisfied with respect to VA's duty to notify him of the information and evidence necessary to substantiate the increased rating claim. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit 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) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit stated that requiring an appellant to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Although not specifically discussed by the court, some other possible circumstances that could demonstrate that VA error did not prejudice the claimant include where the claimant has stated that he or she has no further evidence to submit, or where the record reflects that VA has obtained all relevant evidence. In this case, the Board finds that any VCAA notice errors did not affect the essential fairness of the adjudication as VA has obtained all relevant evidence, and as a reasonable person could be expected to understand from the notice what was needed. Id. Specifically, the May 2004 statement of the case listed the relevant criteria. The veteran initially requested a hearing, and then withdrew his request, however, he has submitted written statements, and additional evidence, on a number of occasions. As actual knowledge of the veteran's procedural rights has been demonstrated, and he has had a meaningful opportunity to participate in the development of his claim, the Board finds that no prejudice to the veteran will result from proceeding with adjudication without additional notice or process. Furthermore, as discussed below, it appears that VA has obtained all relevant evidence. Id. The Board further finds that VA has complied with the VCAA's duty to assist by aiding the veteran in obtaining evidence. It appears that all known and available records relevant to the issues on appeal have been obtained and are associated with the veteran's claims files. The RO has obtained the veteran's service medical records, as well as VA and non-VA medical records, and SSA records. Finally, the veteran has been afforded VA examinations, to include etiological opinions for the service connection claims. The Board therefore concludes that decisions on the merits at this time do not violate the VCAA, nor prejudice the appellant under Bernard v. Brown, 4 Vet. App. 384 (1993). Based on the foregoing, the Board finds that the veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Service connection for a shortened right leg is denied. Service connection for scoliosis is denied. A rating in excess of 50 percent for depression prior to January 26, 2004, and in excess of 70 percent thereafter, is denied. As of January 6, 2003, and no earlier, a rating of 20 percent, and no more, for degenerative disc disease, lumbar spine, is granted, subject to provisions governing the payment of monetary benefits. A compensable rating for service-connected bilateral hearing loss is denied. An effective date prior to October 7, 2002 for service connection for depression is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs