Citation Nr: 0814445 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 04-24 057 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for hyperthyroidism. 3. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a sinus disability. 4. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for headaches. 5. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a right ankle disability. 6. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a right knee disorder. 7. Entitlement to a disability rating higher than 10 percent for service-connected residuals of a right elbow injury. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD A. J. Turnipseed, Associate Counsel INTRODUCTION The veteran had active service from December 1973 to February 1994. This matter comes before the Board of Veterans' Appeals (Board) from a July 2003 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to service connection for hearing loss and determined that new and material evidence had not been submitted to reopen claims for service connection for a sinus disability, headaches, a right ankle disability, and a right arm disability. In that decision, the RO also continued a 10 percent disability rating for service- connected residuals of a right elbow injury. This matter also comes before the Board from a February 2004 rating decision which denied entitlement to service connection for hyperthyroidism. This appeal was previously before the Board in June 2006, at which time the Board denied entitlement to the benefits sought on appeal. That decision was appealed to the United States Court of Appeals for Veterans Claims (CAVC). The record contains a Joint Motion for Remand, dated in December 2007, wherein the veteran's attorneys and the VA General Counsel agreed to remand the veteran's claim. In January 2008, a CAVC order was issued, remanding the veteran's claim for readjudication. The issues of entitlement to service connection for bilateral hearing loss, a sinus disability, headaches, a right ankle disability, and a right knee disability are herein REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will provide notice when further action is required by the appellant. FINDINGS OF FACT 1. The competent and probative medical evidence preponderates against a finding that the veteran currently has hyperthyroidism that is due to any incident or event in military service. 2. The competent and probative evidence of record demonstrates that the veteran's disability associated with service-connected residuals of a right elbow injury is characterized by tenderness over the olecranon process of the ulna, normal extension to zero degrees, flexion limited to no more than 125 degrees, supination limited to no more than 80 degrees, and pronation limited to no more than 70 degrees. The veteran has a round scar on the extensor surface on his right elbow which does not produce any symptomatology. Additional functional impairment due to flare-ups of pain, incoordination, fatigability, or weakness is not demonstrated to any significant degree. CONCLUSIONS OF LAW 1. Hyperthyroidism was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303 (2007). 2. The schedular criteria for a rating higher than 10 percent for service-connected residuals of a right elbow injury have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Code 5299-5207 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide; and to request that the claimant provide any evidence in the claimant's possession that pertains to the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The U.S. Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a claimant prior to the initial decision by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the U.S. Court of Appeals for Veterans Claims clarified VA's duty to notify in the context of claims to reopen. With respect to such claims, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. For an increased-compensation claim, 38 U.S.C.A. § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, 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. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, if the diagnostic code under which the claimant is rated contains criteria necessary for a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that such 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. In addition, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, 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) which 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. Vazquez-Flores at 43-44. The U.S. Court of Appeals for the Federal Circuit has held that, if a claimant can demonstrate error in VCAA notice, such error should be presumed to be prejudicial. VA then bears the burden of rebutting the presumption, by showing that the essential fairness of the adjudication has not been affected because, for example, actual knowledge by the claimant cured the notice defect, a reasonable person would have understood what was needed, or the benefits sought cannot be granted as a matter of law. Sanders v. Nicholson, 487 F.3d 861 (Fed. Cir. 2007); petition for cert. filed (U.S. March 21, 2008) (No. 07-1209). In this case, the VCAA duty to notify was satisfied by way of letters sent to the appellant in April and September 2003 that fully addressed all four notice elements and were sent prior to the initial RO decisions in this matter. The letters informed the appellant of what evidence was required to substantiate his claims for service connection and an increased rating and of the appellant's and VA's respective duties for obtaining evidence. The appellant was also advised that he should send information describing any additional evidence or the evidence itself, which effectively informed him that he should provide any evidence in his possession that pertain to his claims. With respect to the additional notice requirements specific to the veteran's claims to reopen, any issue with regard to the timing or content of the VCAA notice provided to the veteran is moot or represents harmless error, given the favorable decision to reopen his claims for service connection herein. See Kent, supra. The Board notes the VCAA duty to notify has not been satisfied with respect to the additional requirements for an increased-compensation claim as recently delineated by the Court in Vazquez-Flores, supra, nor has the RO provided the veteran with adequate notice which complies with the Court's decision in Dingess v. Nicholson. We find, however, that the notice errors did not affect the essential fairness of the adjudication, because the April and September 2003 letters, together with the substantial development of the veteran's claims before and after providing notice, rendered the notice errors non-prejudicial. In this regard, the Board notes that, while the 2003 letters did not specifically conform to the requirements provided in Vazquez-Flores or Dingess, supra, the veteran was advised of his opportunities to submit additional evidence and was informed that, at a minimum, he needed to submit evidence showing his service-connected disability had increased in severity. Subsequently, SOCs dated in May and July 2004, as well as an August 2004 SSOC, notified the veteran of the evidence that had been received in support of his claims and provided him with yet an additional 60 days to submit more evidence. The SOCs of the case also discussed the evidence included in the record, provided him with the criteria necessary for entitlement to a higher disability rating for his service- connected right elbow disability, and provided the reasons why his claim was being denied. Thus, the Board finds that the purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims. In sum, the Board finds that the post- adjudicatory notice and opportunity to develop the case during the extensive administrative appellate proceedings which led to the RO decision, and our decision herein, did not affect the essential fairness of the adjudication and rendered the notice errors non-prejudicial. See Vazquez- Flores, supra, at 45-46. Moreover, the claimant has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. See Sanders, supra. The Board also finds VA has satisfied its duty to assist the veteran in the development of his claims. The RO has obtained VA outpatient treatment records dated from December 2002 to February 2004. The veteran has submitted private medical records in support of his claims and was afforded VA examinations in April 2003 and February 2004. In addition, it appears that all obtainable evidence identified by the veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is therefore the Board's conclusion that no further notice or assistance to the veteran is required to fulfill VA's duty to assist the veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that a veteran need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. II. Facts and Analysis A. Service Connection Claims Service connection may be granted for disability resulting from personal injury suffered or disease contracted during active military service, or for aggravation of a pre-existing injury suffered, or disease contracted, during such service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303(a), 3.304 (2007). Where there is a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. Id. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). In addition, the law provides that, where a veteran served ninety days or more of active military service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. § 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). The veteran's claimed hyperthyroidism is not one of those diseases subject to presumptive service connection. The Court has held that, in order to prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of incurrence or aggravation of a disease or injury in service; and (3) medical evidence of a nexus between the claimed in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999). The veteran has asserted that service connection is warranted because he has been diagnosed with hyperthyroidism, manifested by symptoms which he first experienced during service. Specifically, he has stated that, during service, he suffered from unusually smooth skin, unexplained large appetite, unexplained hand trembles, unexplained heat intolerance, unnatural sweating, fatigue, and an inability to sleep. He states that, although he did not know he had a thyroid problem during service, his physicians have told him that he has had thyroid problems for years. The veteran's service medical records (SMRs) are negative for any complaints, treatment, or findings related to a thyroid disorder. The first time he is shown to have a thyroid problem is in May 2003 when he presented to VA for a routine physical. The veteran did not have any specific complaints and denied having shortness of breath and weight loss, but he was ordered to undergo lab work. See May 2003 VA outpatient treatment record. Although the results of the initial test are not shown in the record, a June 2003 treatment record reflects that repeat tests revealed low thyroid-stimulating hormone (TSH) and free T4 at 2.29. The veteran was, thus, found to be hyperthyroid, although the examining physician noted he did not have any symptoms of hyperthyroidism except for mild heat intolerance. The veteran was advised to begin taking medication until his subsequent appointment with the endocrine clinic. See June 2003 VA outpatient treatment record. The veteran subsequently sought treatment from a private physician, Y.D.C., M.D., who noted the veteran's complaints of sweating, occasional hand shaking, history of abnormal EKGs in service, occasional shortness of breath, and unintentional weight loss. See June 2003 private medical record. After undergoing laboratory work in June and August 2003, the impression was elevated thyroid uptake consistent with Graves's disease and the final diagnosis was hyperthyroidism. In February 2004, the veteran underwent VA examination to determine whether his current diagnosis of hyperthyroidism is related to service. After reviewing the claims file, noting his medical history, and examining the veteran, the VA examiner continued the veteran's diagnosis of hyperthyroidism, noting that the disorder is unlikely the result of symptoms during military service, because there was no documentation of the veteran complaining of those symptoms during service. After careful review of the evidence, the Board finds the preponderance of the evidence is against the grant of service connection for hyperthyroidism. In making this determination, we reiterate that the veteran's SMRs do not reflect that he complained of, or sought treatment for, any of the symptoms he reports having experienced during service. Therefore, the veteran's credibility as to his report of those symptoms is at issue. It is not a pleasant task for the Board to discount the veteran's credibility; however, after weighing his statements in light of the other evidence of record, the Board affords the veteran's report of suffering from hyperthyroid symptoms during service lessened probative value. In this regard, not only is the record negative for any contemporaneous medical evidence showing complaints or treatment for the reported symptoms, but the evidence shows that, throughout his active military service, the veteran denied having many of the symptoms, including shortness of breath, gain or loss of weight, or any nervous trouble of any sort, including at his November 1993 separation examination. The Board does note the SMRs show that, in April 1992, the veteran complained of occasional episodes of shortness of breath along with a number of other respiratory and cold symptoms. However, his complaints were attributed to hiatal hernia and an upper respiratory infection. The SMRs also show the veteran had abnormal EKGs and decreased visual acuity during service. However, there is no indication in the SMRs or post-service medical evidence that these abnormal clinical findings were indicative of or a precursor for hyperthyroidism that was diagnosed many years after service. In affording the veteran's report of in-service symptomatology lessened probative value, the Board also notes that his report of symptoms is inconsistent. For example, the evidence shows that, after the veteran was diagnosed with hyperthyroidism, the VA physician noted that he did not have any symptoms of hyperthyroidism except for mild heat intolerance. See June 2003 VA outpatient treatment record. However, when he sought treatment from Dr. Y.D.C., he reported suffering from several symptoms, including heat intolerance, occasional hand shaking, and unintentional weight loss. The Board notes the veteran is competent to testify as to the symptoms he suffered during service; however, given the inconsistency in reporting his symptoms and the lack of corroborating medical evidence showing complaints or treatment for his symptoms during service, the Board finds the veteran's report of in-service symptoms, and all lay statements submitted which purport to establish that he suffered from these symptoms during service, to be of lessened probative value. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). In evaluating the ultimate merit of this claim, the Board ascribes the greatest probative value to the medical opinion provided by the physician who conducted the February 2004 VA examination. As noted, the VA physician examined the veteran and reviewed the claims file prior to rendering his opinion that the veteran's hyperthyroidism is less likely the result of symptoms during military service. In addition, the VA examiner also provided a complete rationale for his opinion as he stated there was no documentation of the veteran complaining of those symptoms during service. In support of his claim, the veteran points to a June 2004 written statement from Dr. YDC, which states that, when the veteran came in for his initial exam, he reported that the things he was describing had been happening for years, and although he was not certain if the symptoms were abnormal, his condition was worsening. Dr. YDC stated that most patients experience the signs and symptoms of hyperthyroidism for years and have no idea it is related to a thyroid condition. Dr. YDC further stated that he feels the veteran's condition has existed for many years but was never identified. The Board has carefully considered Dr. YDC's statement and finds it is too general and inconclusive to provide an adequate nexus between the veteran's hyperthyroidism and service. In this regard, the Board again notes that Dr. YDC stated the veteran suffered from symptoms "for years" and that his condition existed "for many years." However, the Board finds Dr. YDC's reference to "years" too general to establish that the veteran suffered from hyperthyroidism or any of its symptoms during service, especially considering that more than nine years passed between the time the veteran was separated from service and is first shown to complain of symptoms associated with hyperthyroidism. In making this determination, the Board is not discounting Dr. YDC's statement that most patients experience the signs and symptoms of hyperthyroidism for years and have no idea it is related to a thyroid condition. In this regard, the veteran also submitted articles which state that a large portion of the U.S. population unknowingly have laboratory evidence of hyperthyroidism. However, this evidence does not provide the etiologic foundation needed to establish that this particular veteran suffered from symptoms in service that led to the development of his hyperthyroidism, which was undiagnosed for years. Therefore, for the foregoing reasons, the Board ascribes lessened probative value to Dr. YDC's August 2004 statement. The veteran may sincerely believe that his hyperthyroidism is related to service and we appreciate the veteran's attempt to support his claim with Dr. YDC's August 2004 opinion. However, because Dr. YDC's opinion is afforded lessened probative value, there is no competent and probative medical opinion of record which establishes that the veteran's hyperthyroidism is related to his military service. The only other evidence that suggests an etiologic relationship between the veteran's hyperthyroidism and service is the veteran's own statements. However, there is no indication that he has the requisite knowledge of medical principles that would permit him to render an opinion regarding matters involving medical diagnosis or medical etiology. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board recognizes that lay statements may be competent to support a claim as to lay-observable events or lay-observable disability or symptoms. See, e.g., Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2006). However, the determination as to causation and nexus in this case requires sophisticated, professional opinion evidence, and, as noted, there is no such competent and probative evidence of record. In summary, the Board finds that the preponderance of the evidence is against the grant of service connection for hyperthyroidism. The most probative evidence of record reflects that it is unlikely that the veteran's hyperthyroidism is related to service and there is no competent and probative medical evidence of record which contradicts this finding. As the preponderance of the evidence is against the veteran's claim, the benefit-of-the- doubt is not for application. See Gilbert, supra. B. New and Material Evidence Claims To reopen a claim which has been previously denied and has become final, the claimant must present new and material evidence. 38 U.S.C.A. § 5108 (West 2002). New and material evidence is defined as evidence not previously submitted to agency decision makers which, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, which is neither cumulative nor redundant, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the U.S. Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the Court of Appeals for Veterans Claims held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). Before the Board may reopen a previously denied claim, it must conduct an independent review of the evidence to determine whether new and material evidence has been submitted sufficient to reopen a prior final decision. The Board does not have jurisdiction to consider a claim which has been previously adjudicated unless new and material evidence is present, and before the Board may reopen such a claim, it must so find. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g Barnett v. Brown, 8 Vet. App. 1 (1995); see Butler v. Brown, 9 Vet. App. 167, 171 (1996); 38 U.S.C.A. §§ 5108, 7104(b). If the Board finds that new and material evidence has not been submitted, it is unlawful for the Board to reopen the claim. See McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). In a rating decision dated December 1994, the RO, in pertinent part, denied entitlement to service connection for a sinus disability, headaches, a right ankle disability, and a right knee disability. In denying the veteran's claims, the RO noted that, while the SMRs showed he received treatment for his claimed disabilities in service, the disabilities were temporary as they resolved with treatment and without any permanent residual disability at separation. The RO essentially found there was no evidence that the veteran incurred chronic disabilities during service. The record reflects the veteran was notified of this decision in December 1994 and did not submit a notice of disagreement as to the issues on appeal. Therefore, the December 1994 decision became final. See 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2007). Since the December 1994 decision, the evidence received into the record includes statements from the veteran and his wife which state that the veteran suffered from sinuses, headaches, a right ankle disability, and a right knee disability during service and has continued to suffer from these problems since service. The new evidence also consists of a February 2004 VA examination and VA outpatient treatment records, dated from December 2002 to February 2004, which show the veteran has been diagnosed with probable allergic rhinitis, occasional frontal headaches, remote ankle sprain, and possible medial meniscus tear in the right knee. At the time of the last final decision, there was no evidence which showed the veteran's in-service complaints and treatment resulted in a chronic disability. Since the December 1994 rating decision, the veteran has submitted lay evidence which states that he has continued to suffer from sinus problems, headaches, and right ankle and knee problems since service, as well as medical evidence showing a current diagnosis related to his claimed disabilities. In determining whether new and material evidence has been submitted to reopen a claim for service connection, we presume the credibility of all evidence. Therefore, the Board finds that such evidence is new, relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the veteran's claims. Accordingly, the claims for entitlement to service connection for a sinus disability, headaches, a right ankle disability, and a right knee disability may be reopened. See 38 U.S.C.A. § 5108. However, as noted, the reopened claims are remanded, for reasons discussed below. C. Increased Rating Claim Disability ratings are based upon schedular requirements that reflect the average impairment of earning capacity occasioned by the state of a disorder. 38 U.S.C.A. § 1155 (West 2002). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4 (2007). In determining the level of impairment, the disability must be considered in the context of the entire recorded history, including service medical records. 38 C.F.R. § 4.2. An evaluation of the level of disability present must also include consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. Also, where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings may be assigned where the symptomatology warrants different ratings for distinct time periods. Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to service connection for residuals of a right elbow injury was established in April 1997, and the RO assigned a 10 percent disability rating pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7804, effective December 30, 1996. At that time, the RO considered a March 1997 VA examination report which showed the veteran had full range of motion and well developed musculature in his right elbow, with two scars over the olecranon and tenderness over the olecranon where the triceps insert. Based on these findings, the RO determined that a 10 percent rating was warranted for a painful and tender scar. In March 2003, the veteran requested that his disability rating be re-evaluated. Subsequently, the RO issued a rating decision in July 2003, wherein it continued the veteran's 10 percent rating assigned but changed the disability rating under which the veteran's disability is rated to DC 5299- 5207. The veteran's specific disability is not listed on the Rating Schedule, and the RO assigned DC 5299-5207 pursuant to 38 C.F.R. § 4.27, which provides that unlisted disabilities requiring rating by analogy will be coded as the first two numbers of the most closely related body part and "99." See 38 C.F.R. § 4.20. The RO determined that the most closely analogous diagnostic code is DC 5207, which provides the rating criteria for limitation of extension of the forearm. It is not clear why the RO changed the diagnostic code under which the veteran's service-connected right elbow is rated; however, the Board will evaluate the veteran's disability under all potentially applicable diagnostic codes, including DCs 5207 and 7804, to determine whether a rating higher than 10 percent can be assigned. The Board notes the veteran is right-handed and is disabled in the right, major extremity. Under DC 5207, a 10 percent rating is warranted where extension of the major forearm is limited to 45 and 60 degrees; a 20 percent rating is warranted where extension is limited to 90 degrees; a 30 percent evaluation is warranted where extension is limited to 70 degrees; a 40 percent evaluation is warranted where extension is limited to 55 degrees; and a 50 percent evaluation is warranted where extension is limited to 45 degrees. Under DC 5206, a noncompensable (zero percent) rating is warranted where flexion of the major forearm is limited to 110 degrees; a 10 percent rating is warranted where flexion is limited to 100 degrees; a 20 percent rating is warranted where flexion is limited to 70 and 90 degrees; a 30 percent rating is warranted where flexion is limited to 55 degrees; and a 40 percent rating is warranted where flexion is limited to 45 degrees. Under DC 5208, a 20 percent rating is warranted where flexion of the major forearm is limited to 100 degrees and extension is limited to 45 degrees. Normal elbow extension and flexion is from 0 to 145 degrees. 38 C.F.R. § 4.71, Plate I (2007). In evaluating the veteran's claim, the Board notes that his current symptoms do not assist him in obtaining a higher, or even compensable, disability rating under DCs 5207, 5206, or 5208. In fact, the evidence shows that at no time during the appeal period has the veteran had limitation of flexion or extension which warrants a higher or compensable disability rating. In this regard, the evidence of record shows that, at the April 2003 and February 2004 VA examinations, the veteran demonstrated zero degrees of extension and 125 degrees of flexion, which are noncompensable under DCs 5207 and 5206, respectively. In addition, a December 2002 VA outpatient treatment record reflects that the veteran had full range of motion in his right elbow. There is no other medical evidence of record which shows the veteran has limitation of flexion or extension which warrants a compensable disability rating. Therefore, the Board finds that DCs 5206, 5207, and 5208 do not assist the veteran in obtaining a disability rating higher than 10 percent. In an effort to afford the veteran the highest possible disability rating, the Board has considered his right elbow disability under all other potentially applicable diagnostic codes. However, he has never demonstrated or been diagnosed with ankylosis of the elbow, impairment of the flail joint, nonunion of the radius and ulna, or impairment of the ulna. Therefore, 38 C.F.R. § 4.71a, DCs 5205, 5209 to 5212 are not for application. The Board has also considered DC 5213, which provides the criteria for impairment of supination and pronation. Under that code, a 10 percent rating is warranted where the major forearm is limited in supination to 30 degrees or less. A 20 percent rating is warranted where there is limitation of pronation manifested by motion lost beyond the last quarter of arc and the hand does not approach full pronation, or where there is loss of bone fusion manifested by the hand being fixed near the middle of the arc or moderate pronation. A 30 percent rating is warranted where there is limitation of pronation manifested by motion lost beyond middle of the arc, or where there is loss of bone fusion manifested by the hand fixed in full pronation. A 40 percent rating is warranted where there is loss of bone fusion with the hand fixed in supination or hyperpronation. At the April 2003 VA examination, the veteran demonstrated supination to 80 degrees and pronation to 70 degrees but, at the February 2004 VA examination, he demonstrated normal supination and pronation. There is no other medical evidence of record which shows the veteran has limitation of pronation or loss of bone fusion as contemplated in DC 5213 or had any symptoms that more nearly approximate the level of disability to warrant a rating higher than 10 percent under that code. Therefore, DC 5213 is not for application in this case. The Board has also considered whether an increased rating is warranted for any scars associated with the veteran's service-connected right elbow disability. In this regard, the evidence shows that he has a round scar over the extensor surface of his right elbow. See April 2003 VA examination report. The evidence does not contain any objective evidence regarding the veteran's right elbow scar and the veteran has not complained of any symptomatology associated with the scar. In this regard, the Board finds it probative that, when the veteran was asked how his right elbow was bothering him at the April 2003 and February 2004 VA examinations, he complained of pain in his right elbow, especially with movement, but did not mention any pain or other symptomatology associated with the scar. Therefore, the preponderance of the evidence is against a finding that he has any symptomatology associated with the scar on his right elbow that warrants a disability rating higher than 10 percent and, thus, DCs 7801 to 7805 are not for application in this case. The Board again notes that 38 C.F.R. §§ 4.40 and 4.45 and the decision in DeLuca v. Brown, supra, require us to consider the veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate disability evaluation for a disability using the limitation-of-motion diagnostic codes. Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, supra. However, under Spurgeon v. Brown, supra, the Board is not required to assign a separate rating for pain. Although the objective evidence of record does not reflect that the veteran complained of pain while demonstrating range of motion at the April 2003 and February 2004 VA examinations, he has stated that pain and fatigue create an additional functional limitation in his right elbow, as he has problems sitting and working at his job for extended periods of time due to the pain in his right elbow. He also reported that he has constant pain in his elbow, especially with complete flexion of his arm. See April 2003 and February 2004 VA examination reports. Despite his report of constant pain, the examiner who conducted the February 2004 VA examination stated that he did not believe his joint function is further diminished by factors such as pain or fatigue. However, in the December 2007 Joint Motion, the veteran's attorneys and the VA General Counsel agreed that the opinion rendered by the February 2004 VA examiner was inadequate, because it was couched in terms of belief and not supported by any clinical evidence. Nonetheless, the Board finds no prejudice to the veteran in this regard because we find that any additional functional limitation due to pain and/or fatigue is contemplated in the disability rating currently assigned. In making this determination, the Board finds that, despite the veteran's report of constant pain in his right elbow, he has demonstrated no more than minimal limitation of right elbow motion. Furthermore, the Board again notes that the symptoms throughout the appeal period do not warrant a compensable rating based upon limitation of motion of the forearm, symptomatology associated with the scar on his right elbow, or any other symptoms experienced as a result of his service- connected right elbow disability. In this context, the Board notes that the preponderance of the evidence shows the veteran's service-connected disability is primarily manifested by tenderness or pain over the olecranon process of the ulna. However, as noted, a separate rating for pain is not required. See Spurgeon, supra. Therefore, the Board finds that any additional functional limitation due to pain and/or fatigue is contemplated in the 10 percent rating currently assigned and thus, an increased rating is not warranted based on application of 38 C.F.R. §§ 4.40 and 4.45 and DeLuca. Finally, the Board has considered whether the veteran was entitled to a "staged" rating for his service-connected disability, as the Court indicated can be done in this type of case under Hart, supra. However, upon reviewing the longitudinal record in this case, the Board finds that, at no time since the veteran filed his claim for an increased rating, in March 2003, has his right elbow disability been more disabling than as currently rated under this decision. Indeed, the objective findings and the veteran's complaints of pain and functional impairment have been relatively consistent throughout the appeal period. In view of the foregoing, the Board finds that the preponderance of the evidence is against the grant of a rating higher than 10 percent for service-connected residuals of a right elbow disability and the evaluation currently assigned adequately reflects the clinically established impairment experienced by the veteran. As the evidence preponderates against the claim, the benefit-of-the-doubt doctrine is inapplicable. See Gilbert, 1 Vet. App. at 55. ORDER Entitlement to service connection for hyperthyroidism is denied. New and material evidence having been submitted, the claim for service connection for a sinus disability is reopened, and the veteran's claim is allowed to this extent only. New and material evidence having been submitted, the claim for service connection for headaches is reopened, and the veteran's claim is allowed to this extent only. New and material evidence having been submitted, the claim for service connection for a right ankle disability is reopened, and the veteran's claim is allowed to this extent only. New and material evidence having been submitted, the claim for service connection for a right knee disability is reopened, and the veteran's claim is allowed to this extent only. Entitlement to a disability rating higher than 10 percent for service-connected residuals of a right elbow injury is denied. REMAND I. Bilateral Hearing Loss The veteran is seeking entitlement to service connection for bilateral hearing loss. In support of his claim, he asserts that he was assigned to two high-noise artillery units while on active duty and has had hearing problems since he came back from Japan in 1992. The SMRs contain numerous audiograms, dated from August 1973 to November 1993, which show the veteran had normal hearing throughout service and at separation from service. In this context, the Board notes that the veteran's representative has recently argued that the November 1993 audiogram shows the veteran had an 85 dB threshold at the 2000 Hz frequency in his right ear. The Board has carefully reviewed the November 1993 audiogram and finds that the number reflected in the 2000 Hz frequency for the right ear is "05" as opposed to "85." In making this finding, the Board notes that the threshold listed in the 500 Hz frequency for the left ear is "05" which includes a zero written in a similar manner as the zero reflected in 2000 Hz frequency for the right ear. Therefore, we find that the veteran's hearing was normal at separation from service and there are no other complaints, treatment, or findings associated with hearing loss in his SMRs. The SMRs do show, however, that the veteran was issued earplugs in April 1974 and October 1975 because he was assigned to a high-noise area. In support of his claim, the veteran points to an August 2004 written statement from D.M.C., M.D., Ph.D., which states that the veteran was evaluated in July 2004 and found to have normal hearing sensitivity with a high frequency drop in his right ear and normal to mild noise-induced hearing loss in his left ear. Dr. DMC also stated that the veteran's word recognition scores were 92% in his right ear and 96% in his left ear. Dr. DMC noted the veteran's military history, including his reports of serving in artillery, infantry, and engineering units where he was exposed to various noise traumas. He also noted the veteran reported that he wore hearing protection most of the time. Nonetheless, Dr. DMC stated that the veteran's hearing loss is more likely than not due to the artillery and explosive noise exposure he endured during service. Although the veteran has submitted a potential nexus statement from his private physician, the Board finds there is insufficient medical evidence of record on which to decide the claim. In order to grant service connection, there must be medical evidence of a current disability, among other things. See Hickson, supra. Although Dr. DMC provided a diagnosis of hearing loss, he did not report the results of the audiogram in decibels for each frequency in order for the Board to determine if he has hearing loss as defined by VA and the audiogram report depicts the puretone thresholds exhibited by the veteran on a graph. See 38 C.F.R. § 4.85 (2007); Kelly v. Brown, 7 Vet. App. 471, 474 (1995) (Board may not interpret graphical representations of audiometric data). In addition, the Board notes that the audiogram does not indicate whether the Maryland CNC test was used to test the veteran's speech discrimination, as required by 38 C.F.R. § 4.85. The Board notes the veteran has not been afforded a VA examination in conjunction with his claim for service connection for bilateral hearing loss and there is no medical opinion of record which provides a competent opinion as to whether he currently has hearing loss as defined by VA that is related to his military service. See McClendon v. Nicholson, 20 Vet. App. 79, 85 (2006). Under the VCAA, VA is obligated to provide an examination where the record contains competent evidence that the claimant has a current disability, the record indicates that a disability or signs or symptoms of disability might be associated with active service, and the record does not contain sufficient information to make a decision on a claim. 38 U.S.C.A. § 5103A; see also McClendon, supra. In this case, the veteran's SMRs show he was assigned to a high noise area during service, which required that he be issued earplugs, and there is a statement from a medical professional which indicates the veteran has hearing loss that may be associated with his service. As a result, the Board concludes that the veteran should be afforded a VA examination in order to determine the likelihood that he currently has hearing loss that is related to service. See 38 C.F.R. § 3.159(c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004) (holding that a medical examination should be afforded unless there is "no reasonable possibility" that an examination would aid in substantiating the veteran's claim). Therefore, the Board finds that a remand for a medical examination and opinion is necessary in order to render a fully informed decision. II. Sinuses and Headaches With respect to the veteran's claims for a sinus disability and headaches, the Board notes he was afforded a VA examination in February 2004 to determine whether his current disabilities are related to service. After reviewing the claims file and evaluating the veteran, the VA examiner diagnosed the veteran with probable allergic rhinitis and occasional frontal headaches. However, the examiner opined that the veteran's diagnoses are less than likely to be the result of symptoms during service, as he was unable to find documentation of the veteran complaining of those symptoms during service. While the February 2004 VA examination report is competent medical evidence, the Board finds the rationale provided in support of the opinion is inadequate. Although the examiner stated he was unable to find documentation of the veteran complaining of these symptoms during service, he noted earlier in his report that he found one entry in the SMRs which showed the veteran had cold symptoms with a headache in April 1992. The Board also notes that it is not clear whether all of the veteran's SMRs were reviewed, as they reflect that he complained of headaches in March 1975, June 1976, April 1984, and April 1992, and was diagnosed with sinus headaches in June 1976. Therefore, a remand is necessary in order to obtain a new medical nexus opinion. III. Right Ankle With respect to the veteran's claim for a right ankle disability, the Board notes he was afforded a separate VA examination in February 2004 to determine whether he has a current right ankle disability that is related to service. Although the VA examiner diagnosed the veteran with a remote ankle sprain and noted that X-rays suggest old trauma, the examiner did not provide an opinion regarding whether his disability is related to the veteran's service. In this regard, the Board notes the SMRs show the veteran twisted his right ankle in service and was ultimately diagnosed with a first degree ankle sprain. See service medical records dated in February and September 1982. Therefore, a remand is necessary in order to obtain a medical nexus opinion. IV. Right Knee With respect to the veteran's claim for a right knee disability, the evidence shows that he has chronic right knee pain that has been attributed to degenerative joint disease or a medical meniscus tear. See VA outpatient treatment records dated December 2002 and June 2003; July 2004 private medical record. The veteran attributes his current disability to his military service and, his SMRs reflect that he twisted his right knee in approximately October 1986. See January 1987 Report of Medical Examination. As noted above, he has submitted statements which state that he has suffered from right knee pain since service and, thus, indicate an association between the veteran's current disability and service. Thus, the Board concludes the veteran should be afforded a VA examination in order to determine the likelihood that he currently has a right knee disability that is related to service. See 38 C.F.R. § 3.159(c)(4) (2007); McClendon, supra. Accordingly, the case is REMANDED for the following action: 1. If feasible, request that the physician who conducted the February 2004 nose, sinus, larynx, and pharynx examination review the entire claims file and provide an opinion as to the likelihood that the veteran's sinus and/or headache disabilities are related to service. a. The physician is requested to offer an opinion as to whether it is more likely than not (i.e., to a degree of probability greater than 50 percent), at least as likely as not (i.e., a probability of 50 percent), or unlikely (i.e., a probability of less than 50 percent) that any current sinus and/or headache disability is causally or etiologically related to the veteran's active service. b. The claims file must be made available to the physician for review in conjunction with the examination, and the examination report should reflect that such review is accomplished. c. A rationale must be provided for all opinions provided and the physician should be requested to address the service medical records which show the veteran complained of headaches and was diagnosed with sinus headaches during service. d. If it cannot be determined whether the veteran currently has a sinus and/or headache disability that is related to his active service, on a medical or scientific basis and without invoking processes relating to guesses or judgment based upon mere conjecture, the examiner should clearly and specifically so specify in the report, and explain why this is so. 2. Schedule the veteran for a VA examination by a qualified medical professional to determine whether he currently has bilateral hearing loss and/or a right knee disability that is related to his active military service. All necessary special studies or tests are to be done and all findings described in detail. The claims file must be made available to the examiner for review in conjunction with the examination, and the examination report should reflect that such review is accomplished. a. The examiner is requested to offer an opinion as to whether it is more likely than not (i.e., to a degree of probability greater than 50 percent), at least as likely as not (i.e., a probability of 50 percent), or unlikely (i.e., a probability of less than 50 percent) that any current bilateral hearing impairment and/or right knee disability is causally or etiologically related to the veteran's active service. b. If it cannot be determined whether the veteran currently has a bilateral hearing impairment and/or right knee disability that is related to his active service, on a medical or scientific basis and without invoking processes relating to guesses or judgment based upon mere conjecture, the examiner should clearly and specifically so specify in the report, and explain why this is so. 3. Thereafter, the issues on appeal should be readjudicated. If the benefits sought on appeal are not granted to the veteran's satisfaction, the veteran should be provided with an SSOC and afforded the appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action unless otherwise informed. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ________________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs