Citation Nr: 0814561 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 05-21 102 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an increased rating for bilateral hearing loss disability, currently evaluated as noncompensably disabling. 2. Entitlement to an increased rating for left Achilles tendonitis, evaluated as 10 percent disabling prior to October 26, 2004 and as 20 percent disabling thereafter. 3. Entitlement to an effective date earlier than June 26, 1979 for the grant of service connection for bilateral hearing loss disability. 4. Entitlement to an effective date earlier than November 19, 1998 for the grant of service connection for tinnitus. 5. Entitlement to an effective date earlier than August 11, 1997 for the grant of service connection for left Achilles tendonitis. 6. Entitlement to an effective date earlier than October 26, 2004 for the grant of a 20 percent evaluation for left Achilles tendonitis. ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The veteran had active service from December 1971 to December 1977. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The issue of entitlement to an effective date earlier than August 11, 1997 for the grant of service connection for left Achilles tendonitis is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Bilateral hearing loss disability is manifested by no more than level II numeric designations bilaterally. 2. For the period prior to October 26, 2004, left Achilles tendonitis was manifested by pain and moderate limitation of motion of the left ankle. 3. For the period from October 26, 2004, left Achilles tendonitis is manifested by pain and marked limitation of the left ankle. 4. In April 1978, the RO administratively denied the veteran's claim of entitlement to service connection for bilateral hearing loss disability; the veteran submitted a claim in June 1979 and service connection was granted; an effective date of June 26, 1979 was subsequently established. 5. The veteran's claim of entitlement to service connection for tinnitus was received on November 19, 1998. 6. Prior to October 26, 2004, left Achilles tendonitis was not manifested by more than pain and moderate limitation of motion of the left ankle. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for bilateral hearing loss disability have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.85, Tables VI, VIA, VII, Diagnostic Code 6100, 4.86 (2007). 2. For the period prior to October 26, 2004, the criteria for an evaluation in excess of 10 percent for left Achilles tendonitis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.16, 4.40, 4.45, 4.71, 4.71(a), Diagnostic Code 5271 (2007). 3. For the period from October 26, 2004, the criteria for an evaluation in excess of 20 percent for left Achilles tendonitis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.16, 4.40, 4.45, 4.71, 4.71(a), Diagnostic Code 5271 (2007). 4. The April 1978 decision that denied entitlement to service connection for bilateral hearing loss disability is final. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. §§ 3.160(d), 20.1100, 20.1104 (2007). 5. The criteria for an effective date earlier than June 26, 1979 for the grant of service connection for bilateral hearing loss disability have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2007). 6. The criteria for an effective date earlier than November 19, 1998 for the grant of service connection for tinnitus have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2007). 7. The criteria for an effective date earlier than October 26, 2004 for the grant of a 20 percent evaluation for left Achilles tendonitis have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2005); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim, in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The Board also notes that 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. at 486. A letter dated in September 1997 asked the veteran to provide information concerning treatment for his claimed disabilities since discharge from service. An April 1999 letter also asked the veteran to identify sources of treatment for his claimed disabilities. He was told that an examination had been requested. A December 2000 letter provided the veteran with the status of his claim for tinnitus. A July 2001 letter explained the VCAA. The veteran was told that VA would make reasonable efforts to obtain evidence necessary to support his claim. He was advised that he was required to provide sufficient information about evidence so that VA could obtain it, and that it was ultimately his responsibility to ensure that VA received the records. The letter provided guidance pertaining to claims for increase. It described the development undertaken by VA. An additional July 2001 letter provided essentially the same information, but pertained to the veteran's claim of entitlement to service connection for tinnitus. It described the evidence necessary to support a claim for service connection. A March 2004 letter provided guidance regarding the veteran's claim for earlier effective dates. It discussed the evidence necessary to establish entitlement to an earlier effective date. This letter listed the evidence of record and told the veteran how VA would assist him in obtaining additional evidence. A September 2004 letter asked the veteran to identify additional evidence of treatment. It listed the evidence of record and told the veteran how VA would assist him in obtaining additional evidence. He was told how to establish an increased rating. A February 2005 letter provided guidance pertaining to an earlier effective date for the grant of service connection for tinnitus. This letter listed the evidence of record and advised the veteran of VA's responsibilities in obtaining evidence. A March 2006 letter discussed the manner in which VA determines disability ratings and effective dates. With respect to the timing of VCAA notice, the Board finds that any defect was harmless error. Although the notices were provided to the veteran both before and after the initial adjudication, the veteran has not been prejudiced thereby. The content of the notice provided to the veteran fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, 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 claim. Therefore, although the veteran received inadequate preadjudicatory notice, and that error is presumed prejudicial, the record reflects that he was provided with a meaningful opportunity such that the preadjudicatory notice error did not affect the essential fairness of the adjudication now on appeal. As the Federal Circuit Court has stated, it is not required "that VCAA notification must always be contained in a single communication from the VA." Mayfield, supra, 444 F.3d at 1333. Regarding the issue of a higher evaluation for bilateral hearing loss disability, the Board observes that the veteran is challenging the initial evaluation assigned following the grant of service connection. In Dingess, the Court of Appeals for Veterans Claims held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service- connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. With respect to the veteran's claim for an increased rating of his left Achilles tendonitis, the Board has considered the adequacy of the VCAA notice in light of the recent Court decision in Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008). The march 2006 letter advised the veteran that, in evaluating claims for increase, VA looks at the nature and symptoms of the condition, the severity and duration of the symptoms, and their impact on employment. The letter did not advise the veteran whether the Diagnostic Codes pertinent to the disability contain criteria necessary for entitlement to a higher rating that would not be satisfied by the veteran's demonstration that there was a noticeable worsening or increase in severity of the disability and the effect of that worsening on the veteran's employment and daily life. However, the Board's review of the record demonstrates that the veteran had knowledge of what was necessary to substantiate his claim. In this regard, the Board notes that in the May 2005 statement of the case, the veteran was provided with the applicable law and criteria required for a higher evaluation. The veteran had an opportunity to respond to the statement of the case, and was subsequently issued a supplemental statement of the case in July 2007. In essence, the record demonstrates that the veteran was made aware of the evidence necessary to substantiate his claim for increase. The Board therefore finds that the fundamental fairness of the adjudication process is not compromised with respect to this issue. With respect to VA's duty to assist, identified treatment records have been obtained and associated with the record. Examinations of the veteran's service-connected disabilities have been conducted. Neither the veteran nor his representative has identified any additional evidence or information which could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that the RO has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Factual Background The veteran's original claim of entitlement to service connection was received in February 1978. In March 1978 the RO asked the veteran to submit a copy of his DD Form 214, or to advise the date of discharge to enable the RO to request service medical records. In April 1978, the claim was administratively denied due the veteran's failure to furnish the requested evidence. The veteran submitted another claim in June 1979. A request for physical examination indicated that the veteran had failed to report for examinations scheduled in November 1979. A December 1979 letter advised the veteran that his claim had been denied because he failed to report for his scheduled examination. In December 1979 the veteran requested to be rescheduled because he had been working out of state at the time of his scheduled examination. A VA audiological examination was conducted in February 1980. The veteran reported gradual decrease in hearing. He also reported bilateral ringing in the ears. The diagnosis was probable bilateral neurosensory hearing loss. An audiogram was recommended. On audiometric testing, the following puretone thresholds were recorded: HERTZ 1000 2000 3000 4000 Right 5 10 50 60 Left 5 20 50 55 Speech discrimination scores were 100 percent bilaterally. The audiometrist indicated that, in view of the overall discrimination results, he believed that the veteran should be able to function in most listening situations without amplification. A request for physical examination indicates that the veteran did not report for a March 1980 examination. A March 1980 letter advised the veteran that his claims were denied because he had failed to report for examinations. The veteran submitted a subsequent claim in March 1987. In letters dated in April and July 1987, the veteran was advised that before further action could be taken on his claim, he was required to submit evidence showing that his claimed disabilities had been treated since discharge from service. He was also asked to submit verification of service. He did not submit evidence showing treatment of his claimed disabilities, and no further action was taken on his claim. The veteran submitted another claim in August 1997. On VA orthopedic examination in September 1997, the veteran reported that he sustained a left Achilles tendon injury in 1975 in a motorcycle accident. The examiner noted that the veteran had a partial laceration of his Achilles tendon at the insertion of the calcaneal bone and underwent surgical repair. The veteran indicated that since that time, he had suffered from persistent symptoms consisting of continual catching and popping in the Achilles area, generally exacerbated by cold weather. He stated that exacerbations were accompanied by extreme pain and stiffness radiating into the calf area. He also described intermittent pain with inversion of the left foot, and that such had occurred more frequently and felt as if the ankle was giving out on him. He noted that he was limited in the amount of physical activity he could perform due to stiffness and instability. Physical examination revealed a well-healed three-centimeter scar over the left Achilles which was not disfiguring, tender, or depressed. There was tenderness over the calcaneal bone and with deep palpation over the gastrocnemius area. Extension and flexion were noted to be appropriate, with dorsiflexion to 10 degrees and plantar flexion to 35 degrees. X-rays revealed evidence of a calcaneal spur. The ankle joint was well aligned with well maintained joint spaces. The diagnosis was status post left Achilles partial laceration with residual limited range of motion, with calcaneal spur. A VA audiometry examination was also conducted in September 1997. Audiometric testing revealed the following puretone thresholds: HERTZ 1000 2000 3000 4000 Right 30 35 70 75 Left 30 35 65 65 Speech recognition scores were 100 percent bilaterally. The audiometrist diagnosed moderate loss bilaterally. The audiometrist noted the veteran's complaints of tinnitus bilaterally. In a July 1998 rating decision, the RO granted service connection for bilateral hearing loss disability with a noncompensable evaluation and for left Achilles tendonitis with a 10 percent evaluation. It determined that an effective date of August 11, 1997 was appropriate. In November 1998, the veteran's representative requested a complete reevaluation of the veteran's medical condition. A VA audiometric examination in April 1999 revealed the following puretone thresholds: HERTZ 1000 2000 3000 4000 Right 25 30 65 60 Left 25 30 60 55 Speech discrimination scores were 100 percent bilaterally. The audiometrist indicated that tinnitus was claimed. A VA orthopedic examination was also conducted in April 1999. The history of the veteran's left Achilles disability was reviewed. He denied that he had sought specific treatment for the Achilles tendon. He reported that he treated discomfort by sitting or using the Jacuzzi. He noted that the Achilles area might swell or hurt in cold weather. He related that he had given up some sports. He indicated that his symptoms were aggravated by walking for more than one- half mile and that discomfort was over the back of the heel. He noted paresthesias in certain positions. He denied nocturnal waking due to the condition and reported that he could not wear certain shoes that rubbed his heel. On physical examination, measurement of the ankles and calves was symmetrical without sign of atrophy. There was a two- centimeter, well healed scar with a small callous midway in the scar. The Achilles tendon was intact. The veteran was able to perform toe raises, and to walk on his heels and toes on a tandem fashion without evidence of fatigability, weakness, incoordination, or pain. The diagnosis was status post partial laceration and subsequent surgical repair and with residuals and sequelae of discomfort, a well healed scar, and normal range of motion. The examiner further noted that range of motion was dorsiflexion of zero to 20 degrees and plantar flexion of zero to 45 degrees. Service connection for tinnitus was denied in a rating decision of June 1999. That decision also continued the noncompensable evaluation for bilateral hearing loss disability and the 10 percent evaluation for left Achilles tendonitis. The July 1999 statement by a private physician indicates that he evaluated the veteran's left Achilles tendon condition. He noted localized tenderness, swelling, and redness over the insertion of the left Achilles tendon, consistent with Achilles tendonitis. He noted that it appeared to be fairly chronic. In September 1999 the RO received the veteran's notice of disagreement with the evaluation of his Achilles tendonitis. A statement of the case was issued in September 1999, but the veteran did not perfect his appeal. The veteran's representative submitted a claim for increased ratings in August 2000. On VA audiological examination in August 2001, the following puretone thresholds were recorded: HERTZ 1000 2000 3000 4000 Right 30 30 65 70 Left 30 30 60 60 Speech recognition scores were 96 percent for the right ear and 100 percent for the left. The diagnosis was moderate sensorineural loss bilaterally. A VA orthopedic examination was also carried out in August 2001. However, the examiner repeatedly referred to the right ankle and Achilles tendon. There is no indication that clarification was sought. Service connection was granted for tinnitus in a December 2001 rating decision. An effective date of November 19, 1998 was assigned. On VA audiological examination in October 2004, the veteran complained of difficulty in situations with background noise. He also reported tinnitus. Audiometric testing revealed the following puretone thresholds: HERTZ 1000 2000 3000 4000 Right 25 30 65 65 Left 25 25 55 65 Speech recognition scores were 98 percent for the right ear and 92 percent for the left. The examiner concluded that the amount of loss was moderate. A VA orthopedic examination was also performed in October 2004. The veteran complained of daily pain and increasing stiffness in the left ankle. He stated that his ankle swelled after prolonged standing but that he had noticed no heat, redness, or instability. He denied locking of his ankle. He noted that fatigability and lack of endurance were problems. He denied any current treatment. He indicated that he experienced flare-ups approximately once per month and that they might last two to five days. The examiner noted that the veteran used a cane, particularly when the pain was severe and during bad weather. Physical examination revealed plantar flexion to approximately 20 degrees. The veteran had minimal dorsiflexion of 5 to 10 degrees. There was guarding of movement on range of motion testing. Both active and passive motions were painful and any movement tended to increase pain. Examination of the left tendo Achilles showed a transverse scar approximately one and one half centimeters in length with a calloused areas at the center point. Any pressure to the medial or lateral side of the left Achilles tendon produced pain, although the scar itself was not tender. The veteran's gait was normal, though the veteran complained of a feeling of stiffness and inflexibility in the left ankle. There was no ankylosis. The diagnosis was traumatic injury to the left Achilles tendon with surgical repair. The examiner noted residual limitation of motion. An October 2006 VA treatment record notes that the veteran was ambulatory and used a cane. A physical examination carried out in October 2006 noted strength to be 5/5 in all extremities. The veteran's gait was steady. Further audiometric testing was carried out in July 2007. The veteran reported difficulty understanding speech when not wearing his hearing aids. The following puretone thresholds were recorded: HERTZ 1000 2000 3000 4000 Right 30 40 65 70 Left 25 35 60 60 Speech recognition scores were 90 percent bilaterally. The assessment was mild to severe sensorineural hearing loss in both ears. Word recognition was noted to be slightly reduced bilaterally. On VA orthopedic examination in July 2007, the veteran reported loss of motion since his last evaluation. He stated that he had pain in the tendon that radiated up his leg and had pain with range of motion which caused him to hesitate to move his ankle. The examiner noted that the veteran used a cane. The veteran related that he was unable to stand for more than a few minutes and that he was unable to walk for more than a few yards. Range of motion testing revealed active dorsiflexion against gravity from zero to five degrees, and passive dorsiflexion from zero to eight degrees, with pain reported throughout the range. Active plantar flexion against gravity was from zero to eight degrees and passively from zero to 10 degrees, with pain throughout. Active eversion against gravity was from zero to five degrees and passively from zero to eight degrees, with pain throughout. Active inversion against gravity was from zero to six degrees and passively from zero to eight degrees, with pain throughout. There was no ankylosis. There was a well healed scar at the distal end of the tendon at its attachment on the calcaneus. There was no rubor, calor, swelling, or any other evidence of ongoing tendonitis of the distal Achilles tendon. Palpation elicited a pain response out of proportion to the palpation and when distracted, such a response was not elicited on palpation. The examiner also noted that the pain reported during range of motion testing was also not consistent with the examination. He indicated that there was little effort noted on the part of the veteran. The diagnosis was partial laceration of the left Achilles tendon, healed, with associated chronic Achilles tendonitis pain, without clinical evidence of chronic inflammation. The examiner concluded that the effect on activities of daily living was moderate. Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (2007). The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (2007). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. Bilateral Hearing Loss Disability The Board observes that in cases where the original rating assigned is appealed, consideration must be given to whether a higher rating is warranted at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). The Board has considered whether a staged rating is warranted. However, the disability did not significantly change and a uniform evaluation is warranted. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (2007). The assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (2007). Evaluations of hearing loss range from noncompensable to 100 percent, based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. 38 C.F.R. § 4.85(a) and (d) (2007). To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100 (2007). The assignment of disability ratings for hearing impairment is 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). Examinations are conducted using the controlled speech discrimination tests, together with the results of the puretone audiometry test. he horizontal lines in table VI, referenced in 38 C.F.R. § 4.85, represent nine categories of percent of discrimination based upon the controlled speech discrimination test. The vertical columns in table VI represent nine categories of decibel loss based upon the puretone audiometry test. The numeric designation of impaired efficiency (I through XI) will be determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column appropriate to puretone decibel loss; thus, for example, with a percent of discrimination of 70 and average puretone decibel loss of 64, the numeric designation is V for one ear. The same procedure will be followed for the other ear. The numeric designations are then applied to table VII, also referenced in 38 C.F.R. § 4.85, to determine the veteran's disability rating. The Board observes that during the pendency of this appeal, VA issued new regulations for evaluating impairment of auditory acuity. These became effective June 10, 1999. 62 Fed. Reg. 25,202-210 (May 11, 1999). The criteria found at 38 C.F.R. 4.85 at Table VI and Table VII remained unchanged. The new criteria allow for instances where a veteran manifests an exceptional pattern of hearing impairment. 38 C.F.R. § 4.86 (2007). When the pure tone thresholds at the four specified frequencies (1000, 2000, 3000, and 4000 hertz) are 55 decibels or more, or when the pure tone thresholds are 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next highest Roman numeral. 38 C.F.R. § 4.86. The Board notes that the veteran's hearing loss disability does not comport with either of these exceptional patterns of hearing impairment. The Board notes that the veteran does not display the exceptional pattern of hearing loss as contemplated by the new criteria. In any event, assuming that the new criteria did apply, VA would be prohibited from applying them to the period prior to May 7, 1999. 38 U.S.C.A. § 5110(g) (West 1991). Having reviewed the evidence pertaining to this claim, the Board observes that application of the regulation to the findings on the February 1980, September 1997, April 1999, August 2001, and October 2004 audiometric evaluations results in a numeric designation of I for each ear. A noncompensable evaluation is warranted when those values are applied to Table VII. Application of the regulation to the findings on the July 2007 audiometric evaluation results in a numeric designation of II for each ear. This also results in a noncompensable evaluation when those values are applied to Table VII. 38 C.F.R. § 4.85, Diagnostic Code 6100 (2007). Accordingly, the record demonstrates that the schedular rating assigned by the RO is correct. The Board has also considered whether the appellant has an exceptional pattern of hearing impairment. 38 C.F.R. § 4.86. However, the evidence demonstrates that the appellant did not have a threshold of 55 decibels or more at the indicated frequencies or a puretone threshold of 30 or less at 1000 Hertz and 70 or more at 2000 Hertz. Therefore, the provisions of 38 C.F.R. § 4.86 are not applicable in this case. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the veteran's claim, that doctrine is not applicable in the instant appeal. 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Left Achilles Tendonitis The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Normal range of ankle motion is dorsiflexion to 20 degrees and plantar flexion to 45 degrees. 38 C.F.R. § 4.71, Plate II. The veteran's left Achilles tendonitis is evaluated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5271. A 10 percent rating is warranted for moderate limitation of motion of the ankle and a 20 percent rating for marked limitation of motion of the ankle. Ankylosis of the ankle in plantar flexion at less than 30 degrees warrants a 20 percent rating. A 30 percent rating is warranted if the ankylosis is in plantar flexion between 30 and 40 degrees or in dorsiflexion between 0 and 10 degrees. A 40 percent rating is warranted if there is ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion or eversion deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5270. Having reviewed the evidence pertaining to this claim, the Board concludes that an evaluation in excess of 10 percent is not warranted for the period prior to October 26, 2004. In this regard, the Board notes that during that period, the veteran complained of pain, stiffness, and limited activity caused by his left Achilles tendonitis. Objectively, there was tenderness and limited motion. At worst, range of motion of the left ankle was observed as dorsiflexion to 10 degrees and plantar flexion to 35 degrees in September 1997. However, in April 1999 range of motion was full, with dorsiflexion to 20 degrees and plantar flexion to 45 degrees. In summary, the functional limitation of motion was no more than moderate during the period prior to October 26, 2004. DeLuca. The 10 percent evaluation contemplates moderate limitation of motion as is shown by the evidence pertaining to this period. There is no evidence of ankylosis or functional impairment exceeding moderate limitation of motion. As such, the Board finds that the appropriate rating for this period is 10 percent. For the period from October 26, 2004, left Achilles tendonitis is evaluated as 20 percent disabling. The Board has concluded that such an evaluation accurately accounts for the manifestations of the veteran's left Achilles tendonitis for this period. Specifically, the Board notes that in October 2004 the veteran had dorsiflexion to five degrees and plantar flexion to approximately 20 degrees, with guarding on range of motion testing. Both active and passive movements were painful. The veteran was noted to ambulate with a cane. In July 2007, range of motion was markedly limited, with pain throughout each range. Dorsiflexion was to five degrees and plantar flexion was to eight degrees. There was no evidence of chronic inflammation. The examiner indicated that the effect of the disability on activities of daily living was moderate. In light of the evidence showing marked range of motion, the Board concludes that the 20 percent evaluation assigned for this period is appropriate. The Board accepts that the veteran has functional impairment, pain, and pain on motion. DeLuca. However, neither the lay nor medical evidence for either period reflects the functional equivalent of ankylosis of the ankle required for a higher evaluation. Rather, the examinations of record have established that the veteran does in fact retain some motion of the left ankle. The Board observes that the veteran is competent to report that his disability is worse. However, he is not a medical professional and his opinion is not competent in regard to matters requiring medical expertise. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Rather, the more probative evidence consists of that prepared by neutral skilled professionals, and such evidence reflects that higher evaluations are not for application. The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert. Effective Dates - Service Connection Section 5110(a), title 38, United States Code, provides that "[u]nless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final disallowance . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." The implementing regulation, 38 C.F.R. § 3.400, similarly states that the effective date of service connection "will be the date of receipt of the claim or the date entitlement arose, whichever is the later." When an application for disability compensation is received within one year of the date of the veteran's discharge or release from service, the effective date of such award shall be the day following the veteran's release. 38 U.S.C.A. § 5110(b)(1) (West 2002). The VA administrative claims process recognizes formal and informal claims. A formal claim is one that has been filed in the form prescribed by VA. 38 U.S.C.A. § 5101(a) (West 2002); 38 C.F.R. § 3.151(a) (2007). An informal claim may be any communication or action, indicating an intent to apply for one or more benefits under VA law. Thomas v. Principi, 16 Vet. App. 197 (2002). 38 C.F.R. §§ 3.1(p), 3.155(a) (2007). An informal claim must be written, see Rodriguez v. West, 189 F. 3d. 1351 (Fed. Cir. 1999), and it must identify the benefit being sought. Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Although a claimant need not identify the benefit sought "with specificity," see Servello v. Derwinski, 3 Vet. App. 196, 199-200 (1992), some intent on the part of the veteran to seek benefits must be demonstrated. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998). See also Talbert v. Brown, 7 Vet. App. 352, 356-7 (1995) (noting that while VA must interpret a claimant's submissions broadly, VA is not required to conjure up issues not raised by claimant). The United States Court of Appeals for the Federal Circuit has emphasized VA has a duty to fully and sympathetically develop a veteran's claim to its optimum. Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). This duty requires VA to "determine all potential claims raised by the evidence, applying all relevant laws and regulations," Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001), and extends to giving a sympathetic reading to all pro se pleadings of record. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). Effective Date of Service Connection for Bilateral Hearing Loss Disability The veteran seeks an effective date prior to June 26, 1979 for the grant of service connection for bilateral hearing loss disability. He has set forth no specific argument with respect to this claim. As noted previously, the veteran submitted his original claim in February 1978, within one year of his discharge from service. However, the RO administratively denied the veteran's original claim in April 1978. No appeal was made. The veteran subsequently submitted a claim in June 1979, and an effective date reflecting receipt of that claim was established upon the grant of service connection for bilateral hearing loss disability. Review of the record reveals that no claim for service connection was received after the April 1978 administrative denial until June 26, 1979. There are no prior documents that can be construed as a claim, informal claim or an intent to file a claim of entitlement to service connection for bilateral hearing loss disability. Under the law, the earliest effective date and the appropriate effective date in this case is June 26, 1979, the date of receipt of the veteran's claim for service connection. The Board observes that under VA regulations, if VA receives or associates with the claims folder relevant official service department records at any time after a decision is issued on a claim that had not been associated with the claims folder when VA first decided the claim, VA will reconsider the claim. 71 Fed. Reg. 52,455-52,457 (September 6, 2006) (to be codified at 38 C.F.R. § 3.156(c)). This regulation comprehends official service department records which presumably have been misplaced and have now been located and forwarded to the Department of Veterans Affairs. In this case, although service medical records were added to the record after the RO's initial denial of the veteran's claim, the records were not initially obtained and associated with the record because the veteran failed to supply adequate information to allow VA to obtain such records. As such, in this case § 3.156 does not provide a basis for an effective date earlier than that currently assigned. The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert. Effective Date of Service Connection for Tinnitus A December 2001 rating decision granted service connection for tinnitus and established an effective date of November 19, 1998. As discussed above, the veteran reported ringing in his ears on examination in February 1980 and endorsed tinnitus in September 1997. Claims submitted by the veteran prior to November 1998 did not include any mention of tinnitus. As noted above, while VA must interpret a claimant's submissions broadly, it is not required to conjure up issues not raised by a claimant. Review of the record reveals no documents that can be construed as a claim, informal claim or an intent to file a claim of entitlement to service connection for tinnitus prior to November 1998. In fact, the November 1998 submission by the veteran did not include tinnitus. Rather, the first intent to seek service connection for tinnitus is located in an August 2000 submission by the veteran's representative. While the Board is uncertain regarding the basis for the assignment of the November 1998 effective date, the evidence clearly demonstrates that there was no submission prior to that date showing an intent to file a claim of entitlement to service connection for tinnitus. Under the law, the earliest effective date and the appropriate effective date in this case is November 19, 1998, the date of receipt of the veteran's statement which the RO construed as claim for service connection. The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert. Effective Date - 20 Percent Evaluation for Left Achilles Tendonitis VA law and regulation provide that unless otherwise provided, the effective date of an award of increased evaluation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(1). The Board notes that the effective date of an award of increased compensation may, however, be established at the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application for an increased evaluation is received within one year from that date. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). In addition, the Court of Appeals for Veterans Claims (Court) has indicated that it is axiomatic that the fact that must be found in order for entitlement to an increase in disability compensation to arise, in other words, that the service- connected disability must have increased in severity to a degree warranting an increase in compensation. See Hazan v. Gober, 10 Vet. App. 511, 519 (1992) (noting that, under section 5110(b)(2) which provides that the effective date of an award of increased compensation shall be the earliest date of which it is ascertainable that an increase in disability had occurred, "the only cognizable 'increase' for this purpose is one to the next disability level" provided by law for the particular disability). Thus, determining whether an effective date assigned for an increased rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim for the increased rating as well as (2) a review of all the evidence of record to determine when an increase in disability was "ascertainable." Id. at 521. Also, with regard to the terms "application" or "claim", the Board notes that once a formal claim for compensation has been allowed, receipt of a VA hospitalization report, a record of VA treatment or hospitalization will be accepted as an informal claim for increased benefits, and the date of such record will be accepted as the date of receipt of a claim. 38 C.F.R. § 3.157(b)(1); 38 C.F.R. § 3.155(a). 38 C.F.R. § 3.155(c) provides that when a claim has been filed which meets the requirements of 38 C.F.R. § 3.151 or 38 C.F.R. § 3.152, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. § 3.157 provides that once a formal claim for compensation has been allowed, the date of outpatient or hospital examination will be accepted as a claim when such reports relate to examination or treatment for which service connection has previously been established or when a claim specifying the benefit sought is received within one year. With respect to the veteran's claim for an effective date earlier than October 26, 2004 for the grant of a 20 percent evaluation for left Achilles tendonitis, the Board has determined above that an evaluation exceeding 10 percent is not warranted for this period. It is axiomatic, therefore, that the grant of an effective date earlier than October 26, 2004 for the grant of a 20 percent evaluation is also not warranted, as the Board determined above that the veteran's left Achilles tendonitis did not warrant an evaluation exceeding 10 percent prior to that date. The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert. ORDER Entitlement to an increased rating for bilateral hearing loss disability is denied. Entitlement to an evaluation in excess of 10 percent for left Achilles tendonitis for the period prior to October 26, 2004 is denied. Entitlement to an evaluation in excess of 20 percent for left Achilles tendonitis for the period from October 26, 2004 is denied. Entitlement to an effective date earlier than June 26, 1979 for the grant of service connection for bilateral hearing loss disability is denied. Entitlement to an effective date earlier than November 19, 1998 for the grant of service connection for tinnitus is denied. Entitlement to an effective date earlier than October 26, 2004 for the grant of a 20 percent evaluation for left Achilles tendonitis is denied. REMAND The Board notes that in December 2003, the veteran submitted a claim of entitlement to earlier effective dates for his service-connected disabilities. In a February 2005 rating decision, the RO granted an increased rating for the veteran's left Achilles tendonitis and denied earlier effective dates for the grant of service connection for the veteran's bilateral hearing loss disability and left Achilles tendonitis. The veteran submitted a notice of disagreement in March 2005. The statement of the case issued in May 2005 did not include the issue of an earlier effective date for the grant of service connection for left Achilles tendonitis. Rather, it addressed the issue of an earlier effective date for the grant of the 20 percent evaluation for that disability. The veteran has submitted a notice of disagreement with the denial of an earlier effective date for the grant of service connection for left Achilles tendonitis. The filing of a Notice of Disagreement places a claim in appellate status. Therefore, a Statement of the Case regarding the issue of entitlement to an earlier effective date for the grant of service connection for left Achilles tendonitis pursuant to 38 C.F.R. § 19.26 must be issued to the appellant. As such, this issue must be remanded. Manlincon v. West, 12 Vet. App. 239, 240- 41 (1999). Accordingly, the case is REMANDED for the following action: The RO should issue the appellant a statement of the case on the issue of entitlement to an earlier effective date for the grant of service connection for left Achilles tendonitis pursuant to 38 C.F.R. § 19.26 (2007). If upon completion of the above action the decision remains adverse to the appellant, the case should be returned, if necessary, after compliance with requisite appellate procedures. 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). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs