Citation Nr: 1007160 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 07-22 660 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Evaluation of degenerative disc disease/degenerative joint disease of the cervical spine, currently rated as 10 percent disabling. 2. Evaluation of degenerative disc disease/degenerative joint disease of the lumbar spine, currently rated as 10 percent disabling. 3. Evaluation of degenerative joint disease of the right knee, currently rated as 10 percent disabling. 4. Evaluation of bilateral hearing loss disability, currently rated as 20 percent disabling. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs ATTORNEY FOR THE BOARD T.S. Willie, Associate Counsel INTRODUCTION The appellant had active service from March 1965 to February 1985. This case is before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Denver, Colorado, Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. Degenerative disc disease/degenerative joint disease of the cervical spine is manifested by combined range of motion greater than 170 degrees, pain and flexion limited to 40 degrees but with no physician prescribed bed rest. 2. Degenerative disc disease/degenerative joint disease of the lumbar spine is manifested by minimal nontender spasm of the lumbar paraspinal area, mild levoscoliosis of the upper spine and mild dextroscoliosis of the lower spine. 3. Degenerative joint disease of the right knee is manifested by flexion limited to 110 degrees. 4. On VA audiometric examination in May 2006, for the right ear the average decibel loss was 38 and the speech recognition score was 80 percent (level III); and for the left ear the average decibel loss was 101 with the speech recognition score of 0 percent (level XI). CONCLUSIONS OF LAW 1. The criteria for an evaluation higher than 10 percent disabling for degenerative disc disease/degenerative joint disease of the cervical spine have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5243- 5242 (2009). 2. The criteria for a 20 percent evaluation for degenerative disc disease/degenerative joint disease of the lumbar spine have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5243-5242 (2009). 3. The criteria for an evaluation higher than 10 percent disabling for degenerative joint disease of the right knee have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5260 (2009). 4. The criteria for an evaluation higher than 20 percent disabling for bilateral hearing loss have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2006), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2009), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Prinicpi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial disability-rating and effective-date elements of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the originating agency provided the appellant with the notice required under VCAA by letters dated in November 2005, March 2006 and June 2008. Regarding the appellant's claim for a higher evaluation, the Board notes that the appellant is challenging the disability evaluation assigned following the grant of service connection. In Dingess, the U.S. 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. Dingess, supra. at 490-191. Thus, VA's duty to notify in this case has been satisfied. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009). In connection with the current appeal, appropriate examinations have been conducted and available service records have been obtained. We also note that the VA examinations were adequate. The examiners reviewed the history, established clinical findings and presented reasons for the opinions. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. The evidence of record provides sufficient information to adequately evaluate the claim, and the Board is not aware of the existence of any additional relevant evidence which has not been obtained. No further assistance to the appellant with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Accordingly, the Board will address the merits of the claim. Legal Criteria Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2009). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2009). Where an award of service connection for a disability has been granted, separate evaluations can be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2008). A disability may require re- evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1 (2009). We conclude that the disabilities have not significantly changed and that a uniform rating is warranted during the time frame addressed in this decision. 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. The appellant's degenerative disc disease/degenerative joint disease of the cervical and lumbar spine are each rated as 10 percent disabling under DC 5243-5242. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27 (2009). Under the general rating formula for diseases and injuries of the spine, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine; and 100 percent for unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Diagnostic Code 5243 provides that intervertebral disc syndrome (IVDS) is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. The appellant's degenerative joint disease of the right knee is rated as 10 percent disabling under DC 5003-5260. Diagnostic Code 5003 addresses arthritis, while DC 5260 addresses limitation of flexion. Under DC 5260, a noncompensable rating is warranted for flexion limited to 60 degrees, a 10 percent rating is warranted for flexion limited to 45 degrees, a 20 percent rating is warranted for flexion limited to 30 degrees, and a 30 percent rating is warranted for flexion limited to 15 degrees. Separate ratings under Diagnostic Code 5260 and 5261 may be assigned for disability of the same joint. See VAOPGCPREC 9- 2004. Normal ranges of motion of the knee are to 0 degrees in extension and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Evaluation of Cervical Spine The appellant has appealed the denial of an evaluation higher than 10 percent disabling for degenerative disc disease/degenerative joint disease of the cervical spine. The current rating contemplates periarticular pathology productive of painful motion. 38 C.F.R. § 4.59. It is also consistent with forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. To warrant a higher evaluation the evidence must show forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A higher evaluation may also be based upon the frequency and duration of incapacitating episodes. The appellant was afforded a VA compensation and pension examination in May 2006. During this examination, degenerative disc disease and degenerative joint disease of the cervical spine was diagnosed. The appellant reported that he gets pain in the neck approximately every other day and it is unpredictable as to what will bring it about. At its worst, he reported that the pain might be an eight out of 10. Examination of the cervical spine revealed flexion of 0 to 40 degrees, extension 0 to 30 degrees, right and left rotations 0 to 70 degrees, and right and left side bending 0 to 20 degrees. There was no palpable spasm or point tenderness. The upper extremity neurological examination was nonfocal and there was no tremulousness. Motor strength was 5/5 in all muscle groups tested and sensation was intact over all dermatomes using a monofilament. There was no palpable crepitus within the neck after repetitive motion against resistance and there was no increased pain or reduced range of motion of his cervical spine. The examiner noted that except as noted, there was no change in the active or passive ranges of motion during repeat testing against resistance and no additional losses of range of motion were recommended due to painful motion, weakness, impaired endurance, incoordination, instability or flares. Severe neck pain for seven day duration was noted in November 2006. The appellant denied muscle spasms or recent trauma/strain. Range of motion was 90 degrees due to right posterior neck pain. Neck pain was diagnosed in March 2007. The appellant reported increased posterior neck pain of two day duration. In light of the evidence above, the Board finds that an evaluation higher than 10 percent disabling for degenerative disc disease/degenerative joint disease of the cervical spine is not warranted. In this regard, the Board notes that the evidence shows the functional equivalent of forward flexion of the cervical spine greater than 30 degrees. At most, the evidence shows forward flexion of the cervical spine limited to 40 degrees. Furthermore, there is no showing of muscle spasms or guarding or the combined range of motion of the cervical spine not greater than 170 degrees. These findings do not justify an evaluation higher than 10 percent disabling. It is clear that the VA examiner considered Deluca factors. However, neither the lay or medical evidence suggest the functional equivalent of limitation of flexion to 30 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, or the functional equivalent of combined range of motion of the cervical spine 170 degrees or less. In fact, the Board has considered the pleadings of the appellant. However, the pleadings are not specific and do not provide any bases for a higher evaluation. The Board has considered whether the appellant's service- connected cervical spine disability would warrant a higher rating if rated on the basis of incapacitating episodes. Under the Formula for Rating IVDS Based on Incapacitating Episodes a 20 percent rating requires incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months. The appellant has not reported any incapacitating episodes and the May 2006 VA examiner reported that there were no hospitalizations of note. In light of the lack of evidence demonstrating any episodes requiring bed rest prescribed by a physician and treatment by a physician for IVDS, and indeed, in light of the lack any assertion on the part of the appellant that the criteria for incapacitating episodes have been met, the Board finds that a rating under the Formula for Rating IVDS Based on Incapacitating Episodes would not allow for a rating higher than 10 percent. In sum, although the appellant experiences neck pain, this does not approximate the criteria for a 20 percent rating based on limitation of motion or functional equivalent. Moreover, there is no evidence of incapacitating episodes. The Board notes that the appellant is competent to report that his disability is worse. However, the more probative evidence consists of that prepared by neutral skilled professionals, and such evidence demonstrates that a rating in excess of 10 percent disabling is not for application. The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the appellant or his representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board has found no section that provides a basis upon which to assign a higher evaluation. With regard to neurologic abnormalities, there is no evidence of any neurologic manifestations associated with the cervical spine disability which require separate compensable ratings rather the evidence discloses the upper extremity neurological examination was nonfocal, there was no tremulousness, motor strength was 5/5 in all muscle groups tested and sensation was intact over all. As such, the Board concludes that the preponderance of the evidence is against the assignment of a rating higher than 10 percent disabling for the appellant's degenerative disc disease/degenerative joint disease of the cervical spine. Evaluation of Lumbar Spine The appellant has appealed the denial of an evaluation higher than 10 percent disabling for degenerative disc disease/degenerative joint disease of the lumbar spine. The current rating contemplates periarticular pathology productive of painful motion. 38 C.F.R. § 4.59. It is also consistent with forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. To warrant a higher evaluation the evidence must show forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A higher evaluation may also be based upon the frequency and duration of incapacitating episodes. The appellant was afforded a VA compensation and pension examination in May 2006. During this examination, degenerative disc disease and degenerative joint disease of the lumbar spine was diagnosed. The appellant reported he gets some lower back discomfort nearly daily but that he also rides his horse extensively and tends to actually feel better with riding. It was noted that sitting still would limit the appellant to about an hour but there is no significant limitation on standing, climbing or walking. He had no incontinence of bowel or bladder, and no lower extremity radicular symptoms such as numbness, tingling, weakness or discoordination. The appellant reported that his lower back really does not impact his daily activities much at all. Examination revealed there was minimal nontender spasm of the lumbar paraspinal area. From a standing position, the appellant could flex 0 to 90 degrees, extend 0 to 20 degrees, right and left side bends 0 to 30 degrees, and right and left rotation 0 to 30 degrees. From a supine position straight leg raising was 0 to 80 degrees bilaterally. The examiner noted that except as noted, there was no change in the active or passive ranges of motion during repeat testing against resistance and no additional losses of range of motion were recommended due to painful motion, weakness, impaired endurance, incoordination, instability or flares. Also, from a standing position there was a modest diminished lumbar lordosis and there was minimal nontender spasm of the lumbar paraspinal area. X rays revealed mild diffuse osteopenia was present consistent with the appellant's age. The lumbosacral spine demonstrated mild levoscoliosis of the upper spine and mild dextroscoliosis of the lower spine. There was mild loss of height of the L1 vertebral body and severe loss of height of the L3 vertebral body. Mild to moderate disc disease at multiple levels was diagnosed. In light of the evidence presented, the Board finds that a 20 percent evaluation for degenerative disc disease/degenerative joint disease of the lumbar spine is warranted. Although the evidence shows forward flexion of thoracolumbar spine greater than 30 degrees and that the combined range of motion of the thoracolumbar spine is greater than 120 degrees, there are findings of minimal nontender spasm of the lumbar paraspinal area, and mild levoscoliosis of the upper spine and mild dextroscoliosis of the lower spine. The findings of scoliosis and muscle spasms justify a 20 percent evaluation. Although a 20 percent evaluation is warranted, the Board finds that a rating higher than 20 percent disabling is not warranted. To warrant the next higher rating the evidence must show forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. The evidence shows the remaining functional forward flexion of thoracolumbar spine is greater than 30 degrees. There is also no showing of ankylosis. The Board notes that the appellant walked without any noticed abnormality of gait and that he did not use a cane or crutch. The May 2006 examiner noted that the appellant moved easily to and from the examination table. At most, the evidence shows flexion limited to 90 degrees. The Board accepts that the appellant has functional impairment. See DeLuca. The Board also finds the appellant's own reports of symptomatology to be credible. However, neither the lay nor medical evidence reflects the functional equivalent of limitation of motion nor the functional equivalent of limitation of flexion required to warrant a 40 percent evaluation. The Board notes that the appellant is competent to report that his disability is worse. However, the more probative evidence consists of that prepared by neutral skilled professionals, and such evidence demonstrates that a 20 percent rating and no more is for application. The Board has also considered whether the appellant's service- connected lumbar spine disability would warrant a higher rating if rated on the basis of incapacitating episodes. The appellant has not reported any incapacitating episodes and the May 2006 VA examiner reported that there were no hospitalizations of note. In light of the lack of evidence demonstrating any episodes requiring bed rest prescribed by a physician and treatment by a physician for IVDS, and indeed, in light of the lack any assertion on the part of the appellant that the criteria for incapacitating episodes have been met, the Board finds that a higher rating under the Formula for Rating IVDS Based on Incapacitating Episodes is not warranted. In sum, the criteria for a 20 percent rating based on limitation of motion and incapacitating episodes have not been met. However, in light of the findings of muscle spasms and scoliosis, a 20 percent rating for degenerative disc disease/degenerative joint disease of the lumbar spine is warranted. Accordingly, the claim is granted. Evaluation of Right Knee The appellant has appealed the denial of a higher evaluation for degenerative joint disease of the right knee, rated as 10 percent disabling. The current evaluation contemplates periarticular pathology productive of painful motion. It is also consistent with limitation of flexion to 45 degrees. To warrant a higher evaluation the evidence must show the functional equivalent of flexion limited to 30 degrees. See DeLuca. This includes any functional restrictions due to pain, painful motion, weakness and more than normal or excess fatigability. Separate evaluations may be assigned if there is compensable limitation of extension or subluxation or instability. In October 2005, it was noted that the appellant was able to do his daily activities without limitation. The right knee had full range of motion. There was negative Lachmen and McMurray's, and no TP or swelling. Right knee arthritic changes were noted in October 2005. The appellant was afforded a VA compensation and pension examination in May 2006. During this examination, degenerative joint disease of the right knee was diagnosed. The appellant reported that his right knee only hurts intermittently and only on occasion with walking. The appellant reported that his knee never swells, locks or pops, and that he never wears a brace. There was no significant sense of instability and no falls. The appellant arose from his seat easily and he walked without any noticed abnormality of gait. He also moved easily to and from the examination table. Examination revealed pain with extension with point tenderness at the superior patella. The appellant could flex the knee 0 to 130 degrees and extension was full, though mildly uncomfortable. There was no instability of the patella and negative Lachman. There was no medial or lateral gapping with valgus or varus stress. There was also no joint line tenderness to palpation or joint effusions. After repetitive motion against resistance, flexion remained 0 to 130 degrees and extension remained full. It was noted that the appellant did not walk with a cane or crutch. The examiner noted that except as noted, there was no change in the active or passive ranges of motion during repeat testing against resistance and no additional losses of range of motion were recommended due to painful motion, weakness, impaired endurance, incoordination, instability or flares. In an examination in July 2006, it was noted that the right knee seemed to be causing mild pain but there was no effusion. In September 2006, right knee pain for one year was noted. The appellant reported that the pain was made worse by stepping in holes, prolonged walking, climbing up steps and prolonged driving. There was no giving way but locking sensation. Antalgic gait, range of motion 0 to 110, joint line tenderness, patellar crepitus, patellar inhibition, positive McMurray and negative Lachman's was noted. Pain with right knee extension test was noted in October 2006. In November 2006, the appellant was seen for a follow up for right knee patella femoral dysfunction. It was noted that he was not able to actively extend the right knee while sitting because of discomfort. He reported some swelling Patella femoral dysfunction right knee/meniscus was assessed in January 2007. The right knee range of motion passively was 0 to about 110 degrees and actively the appellant could not extend past 70 degrees but if the knee was passively extended to 25 degrees he could fully extend it. The quads maintained full extension and there was no effusion, ligaments were stable, and the femoral tibial joint was not tender. In April 2007, the appellant was seen for right patellafemoral osteoarthritis. Retropatellar pains with clicking/popping and occasional feeling of weakness were noted. The appellant denied numbness, tingling and fever/chills. There was no medial/lateral joint line tenderness and stable ligaments. Passive range of motion was 0 to 140 degrees and active range of motion was 0 to 140 degrees. Difficulty extending due to pain was noted. Straight leg intact and no limp were also noted. Right knee good range of motion was noted in May 2007. Right knee pain was noted. The appellant denied locking. Right knee arthroscope was noted in May 2007. Intermittent right knee pain was noted in March 2008. The Board finds that the lay and medical findings show that the appellant's right knee disability is no more than 10 percent disabling. At most, the evidence shows flexion of the right knee limited to 110 degrees. Although the evidence shows that the appellant has complained of episodes of pain and swelling, there is no lay or medical evidence that any Deluca factor effectively limits flexion to 30 degrees. The appellant's functional limitation is no greater than the actual limitation caused by this disability. Thus, a rating higher than 10 percent disabling under DC 5260 is not warranted as it has not been shown that flexion is functionally limited to 30 degrees. DeLuca, supra, 8 Vet. App. 202. The Board notes that the appellant is competent to report that his disability is worse. However, the more probative evidence consists of that prepared by neutral skilled professionals, and such evidence demonstrates that an evaluation in excess of 10 percent is not warranted. The evidence of record further shows a separate evaluation for limitation of extension is not warranted. In this regard, the Board notes that full extension was shown in May 2006. It was noted in November 2006 that the appellant was not able to actively extend the right knee while sitting because of discomfort and difficulty extending due to pain was noted in April 2007. The Board recognizes the January 2007 finding that the right knee range of motion passively was 0 to about 110 degrees and actively the appellant could not extend past 70 degrees but if the knee was passively extended to 25 degrees he could fully extend it. The report that he cannot extend past 70 degrees actively but passively he can extend fully is an aberrant report. When taking into consideration the functional impairment and every other report in the record, we discount the January 2007 report of impairment limited to 70 degrees as inconsistent with all other reliable evidence and not an accurate depiction of his remaining functional use. We also find that because it is aberrant and inconsistent with the reliable evidence and historical record, a staged rating based upon impairment of extension is not warranted. A noncompensable evaluation is warranted where extension of the leg is limited to 5 degrees. There is no reliable showing of such in the record. Furthermore, the appellant does not have ankylosis, recurrent subluxation or lateral instability, dislocated or removed cartilage, or impairment of the tibia and fibula. Therefore, a separate evaluation under any other rating criteria is inappropriate here. The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the appellant or his representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board has found no section that provides a basis upon which to assign a higher disability rating. As such, the Board concludes that the preponderance of the evidence is against the assignment of an evaluation higher than 10 percent disabling for degenerative joint disease of the right knee. Evaluation of Bilateral Hearing Loss Disability The appellant's service-connected bilateral hearing loss disability has been rated by the RO under the provisions of Diagnostic Code 6100. 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. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The severity of a hearing loss disability is determined by applying the criteria set forth at 38 C.F.R. § 4.85. Under these criteria, evaluations of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average pure tone hearing threshold level, as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz, or cycles per second, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85(a), (d). Table VI, "Numeric Designation of Hearing Impairment Based on Pure tone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the pure tone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and pure tone threshold average intersect. 38 C.F.R. § 4.85(b). Table VII, "Percentage Evaluations for Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing, while the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(e). In addition, 38 C.F.R. § 4.86 applies to exceptional patterns of hearing impairment. Under its provisions, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman Numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86. On the April 2005 VA audiological examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 10 25 55 50 LEFT 85 100 105+ 105+ The appellant reported levels for the left ear above 90 to be approaching pain. On the May 2005 VA audiological examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 20 25 55 55 LEFT 90 90 100 105+ On the October 2005 VA audiological examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 20 50 50 LEFT 90 105 105+ 105+ The appellant had a pure tone average of 34 for the right ear and 101 for the left ear. Speech audiometry revealed speech recognition ability of 88 percent in the right ear. It was noted that the appellant had very good speech discrimination in the right ear, but the examiner was unable to test the left ear speech discrimination. On the May 2006 VA compensation and pension examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 20 25 50 55 LEFT 90 105 105+ 105+ The appellant had a pure tone average of 38 for the right ear and 101 for the left ear. Speech audiometry revealed speech recognition ability of 80 percent in the right ear and 0 percent in left ear. On the June 2007 VA compensation and pension examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 20 30 60 55 LEFT 105+ 105+ 105+ 105+ The appellant had a pure tone average of 41 for the right ear and 105 for the left ear. Speech audiometry revealed speech recognition ability of 100 percent in the right ear. The left ear was not tested for speech recognition ability. The June 2007 audiological evaluation revealed an average right ear pure tone decibel loss of 41 with speech recognition of 100 percent. This corresponds to a numeric designation of Level I hearing in the right ear. 38 C.F.R. § 4.87, Table VI (2009). The appellant had a left ear average pure tone decibel loss of 105+ with speech recognition of 0 percent. These findings are consistent with Level XI hearing in the left ear. These combined numeric designations result in a rating of 10 percent under Diagnostic Code 6100. 38 C.F.R. § 4.85, Table VII (2009). The Board notes that for the left ear the June 2007 examination showed that pure tone threshold at all four of the specific frequencies were 55 decibels or more. As such, special consideration exists and the designation for hearing impairment for the left ear can be from either Table VI or Table VIa, whichever results in the higher numeral. In this case, the results remain the same. With an average of 105, Table VIa gives the appellant Level XI hearing for the left ear. The combined numeric designations of Level I for the right ear and Level XI for the left ear result in a rating of 10 percent under Diagnostic Code 6100. 38 C.F.R. § 4.85, Table VII (2009). The May 2006 audiological evaluation revealed an average right ear pure tone decibel loss of 38 with speech recognition of 80 percent. This corresponds to a numeric designation of Level III hearing in the right ear. 38 C.F.R. § 4.87, Table VI (2009). The appellant had a left ear average pure tone decibel loss of 101 with speech recognition of 0 percent. These findings are consistent with Level XI hearing in the left ear. These combined numeric designations result in a rating of 20 percent under Diagnostic Code 6100. 38 C.F.R. § 4.85, Table VII (2009). The Board notes that for the left ear the May 2006 examination showed that pure tone threshold at all four of the specific frequencies were 55 decibels or more. As such, special consideration exists and the designation for hearing impairment for the left ear can be from either Table VI or Table VIa, whichever results in the higher numeral. In this case, the results remain the same. With an average of 101, Table VIa gives the appellant Level X hearing for the left ear. The combined numeric designations of Level III for the right ear and Level X for the left ear result in a rating of 20 percent under Diagnostic Code 6100. 38 C.F.R. § 4.85, Table VII (2009). The October 2005 audiological evaluation revealed an average right ear pure tone decibel loss of 34 with speech recognition of 88 percent. This corresponds to a numeric designation of Level II hearing in the right ear. 38 C.F.R. § 4.87, Table VI (2009). The appellant had a left ear average pure tone decibel loss of 101 with speech recognition of 0 percent. These findings are consistent with Level XI hearing in the left ear. These combined numeric designations result in a rating of 10 percent under Diagnostic Code 6100. 38 C.F.R. § 4.85, Table VII (2009). The Board notes that for the left ear the October 2005 examination showed that pure tone threshold at all four of the specific frequencies were 55 decibels or more. As such, special consideration exists and the designation for hearing impairment for the left ear can be from either Table VI or Table VIa, whichever results in the higher numeral. In this case, the results remained the same. With an average of 101, Table VIa gives the appellant Level X hearing for the left ear. The combined numeric designations of Level II for the right ear and Level X for the left ear result in a rating of 10 percent under Diagnostic Code 6100. 38 C.F.R. § 4.85, Table VII (2009). The Board notes that the appellant does not have an exceptional pattern of hearing as defined by 38 C.F.R. § 4.86 given that the results of audiology testing do not show that the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz. As shown above, at most, the audiometric examinations support a 20 percent rating for bilateral hearing loss disability. Although the appellant asserts that his hearing loss is worse than evaluated, the medical evidence prepared by a skilled neutral professional is more probative. The Board notes that the appellant's assertions that his hearing has deteriorated are credible. However, in determining the actual degree of disability, the examination findings are more probative of the degree of impairment. Moreover, as noted above, the Court has noted that the assignment of disability ratings for hearing impairment is derived at by a mechanical application of the numeric designations assigned after audiometric evaluations are rendered. Lendenmann, supra. In this case, the numeric designations produce a 20 percent disability evaluation. 38 C.F.R. Part 4 Diagnostic Code 6100. Accordingly, the 20 percent rating presently assigned accurately reflects the degree of the appellant's service- connected hearing impairment. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. Part 4, § 4.85, Diagnostic Code 6100. Based on the foregoing, the claim for an evaluation higher than 20 percent disabling for bilateral hearing loss must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the instant appeal. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). Extraschedular Consideration Consideration of referral for an extraschedular rating requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, No.2008-7135 (Fed.Cir. Jul. 17, 2009). The first question is whether the schedular rating adequately contemplates the veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. Here, the Board finds that the record reflects that the appellant has not required frequent periods of hospitalization for his disabilities and that the manifestations of the disabilities are contemplated by the schedular criteria. Therefore, there is no reason to believe that the average industrial impairment from the disabilities would be in excess of that contemplated by the schedular criteria. Therefore, referral of the case for extra- schedular consideration is not in order. ORDER An evaluation higher than 10 percent disabling for degenerative disc disease/degenerative joint disease of the cervical spine is denied. An evaluation of 20 percent disabling for degenerative disc disease/degenerative joint disease of the lumbar spine is granted, subject to the law and regulations governing the payment of monetary benefits. An evaluation higher than 10 percent disabling for degenerative joint disease of the right knee is denied. An evaluation higher than 20 percent disabling for bilateral hearing loss disability is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs