Citation Nr: 1237246 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 07-17 188A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a disability evaluation in excess of 10 percent for hypertension. 2. Entitlement to an initial compensable disability evaluation for bilateral hearing loss. 3. Entitlement to a disability evaluation in excess of 10 percent for hiatal hernia. 4. Entitlement to a disability evaluation in excess of 10 percent for temporomandibular joint (TMJ) disability. 5. Entitlement to a disability evaluation in excess of 40 percent for orthopedic manifestations of degenerative disc disease of the lumbar spine. 6. Entitlement to a disability evaluation in excess of 10 percent for right (major) elbow disability. 7. Entitlement to a disability evaluation in excess of 10 percent for left (minor) elbow disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran had active service from January 1952 to August 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from various rating determinations of the Department of Veterans Affairs (VA) Regional Office (RO) located in Houston, Texas. The Veteran has essentially appealed the initial evaluation that was assigned for his bilateral hearing loss disability. The appellant is, in effect, asking for higher ratings effective from the date service connection was granted. Consequently, the evidence to be considered includes that for the entire time period in question, from the original grant of service connection for bilateral hearing loss effective in June 2004, to the present for this initial increased rating claim on appeal. While the case was in appellate status, the RO issued a rating decision, in April 2007, that increased the evaluation for the lumbar spine disability from 10 percent to 40 percent, effective from June 2004. The RO also issued a rating decision, in January 2010, that increased the rating for the temporomandibular joint (TMJ) disability from zero percent to 10 percent, effective from June 2004. Because the increase in the evaluations for the lumbar spine and TMJ disabilities did not represent the maximum rating available for either condition, the appellant's claims remained in appellate status. This matter was previously before the Board in February 2011, at which time the issues listed on the title page of this decision were remanded for further development. The Board also granted separate disability evaluations for neurological manifestations of the lumbar spine disability at that time. In a February 2011 rating determination, the Appeals Management Center (AMC) acting on behalf of the RO, assigned separate 10 percent disability evaluations for left and right lower extremity neuropathy. As the Veteran has not filed a notice of disagreement with the assigned disability evaluations, these issues are not currently before the Board. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of increased disability evaluations for left and right elbow disabilities are remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. The Board has considered the issue of whether the claims above raise the issue of entitlement to a total rating based on individual unemployability (TDIU). Clearly if the Veteran believes that he cannot work as the result of his service connected disabilities he should file such a claim immediately. This claim was considered by the RO in a February 2011 rating action and the Veteran did not appeal. Therefore, this issue is not before the Board at this time. However, following the actions requested in remand below, the RO should address the TDIU issue directly in a separate rating action to insure that this issue is fully considered. This issue will not before the Board unless the Veteran appeals the rating action. FINDINGS OF FACT 1. The Veteran has not been shown to have predominant diastolic blood pressure readings of 110 or more or predominant systolic readings of 200 or more throughout the course of the appeal. 2. The Veteran has been shown to have no less than level II hearing in either ear during the course of this appeal. 3. The Veteran's hiatal hernia has not been shown to cause persistently recurrent epigastric distress with dysphagia or pyrosis and regurgitation accompanied by substernal or arm or shoulder pain; it has also not been shown to cause considerable impairment of health. 4. TMJ has been shown to produce an inter-incisal range of motion limited to no less than 31 mm and lateral excursion greater than 0 mm. 5. The Veteran's lumbosacral disc disease is not productive of unfavorable ankylosis of the entire thoracolumbar spine or of the entire spine and there has been no showing of incapacitating episodes having a total duration of at least six weeks during the past 12 months during the appeal period. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for hypertension have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.7, 4.10, 4.104, Diagnostic Code 7101 (2011). 2. The criteria for an initial compensable disability rating for service-connected bilateral hearing loss have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(b)(1), 4.85, 4.86, Diagnostic Code 6100 (2011). 3. The criteria for an evaluation in excess of 10 percent for a hiatal hernia have not been met. 38 U.S.C.A. § 1155 ; 38 C.F.R. §§ 3.321(b)(1), 4.1-4.14, 4.114, Diagnostic Code 7346 (2011). 4. The criteria for an evaluation in excess of 10 percent for TMJ disability have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.31, 4.150, Diagnostic Codes 9904, 9905 (2011). 5. The criteria for an evaluation in excess of 40 percent for degenerative disc disease of the lumbar spine, based upon limitation of motion or incapacitating episodes, have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Codes 5235-5243 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. Hypertension With regard to hypertension, the rating schedule provides a 10 percent evaluation when diastolic pressure is predominantly 100 or more, or when systolic pressure is predominantly 160 or more, or for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is warranted when diastolic pressure is predominantly 110 or more, or; systolic pressure is predominantly 200 or more. A 40 percent evaluation requires diastolic pressure of predominantly 120 or more. 38 C.F.R. § 4.104, Code 7101. At the time of a July 2004 VA examination, the Veteran was noted to be taking blood pressure medication. Physical examination revealed blood pressure readings of 140/90 in the right arm and 130/88 in the left arm when sitting and 134//86 in the left arm when standing. Pulse was 84 and regular while respirations were 20 and regular. The heart had a regular rate and rhythm of 84 beats per minute with no ectopic beats identified. There were no bruits or murmurs identified. A diagnosis of hypertension essential, treated and stable, was rendered. At the time of a March 2007 VA outpatient visit, the Veteran was noted to have a blood pressure reading of 174/109. At the time of a December 2009 VA examination, the Veteran reported having been on blood pressure medication since the 1970's. He was noted to be taking several blood pressure medications. Physical examination revealed a blood pressure reading of 132/84. The Veteran was then administered three blood pressure readings which were 132/84, 138/86, and 138/88. The examiner diagnosed the Veteran as having hypertension. It was noted that the Veteran was not currently employed and that the hypertension had no effect on activities of daily living. The Board notes that the Veteran has been on continuous blood pressure medication throughout the course of the appeal. As such, a 10 percent disability evaluation is warranted for the entire appeal period. An evaluation in excess of 10 percent is not warranted for any time during the appeal period as the Veteran's diastolic blood pressure has never been shown to be predominantly 110 or more. The blood pressure readings taken at the time of the VA examinations and as part of outpatient visits have been predominantly under 110 as evidenced above. Moreover, the Veteran has never had any systolic blood pressure readings of 200 or more. The Board has considered the Veteran's subjective reports, however the objective medical evidence does not demonstrate the blood pressure readings required for an evaluation in excess of 10 percent. The preponderance of the evidence is against the assignment of an evaluation in excess of 10 percent for the Veteran's service-connected hypertension. 38 U.S.C.A. § 5107(b). Hearing Loss Evaluations of defective hearing range from noncompensable to 100 percent for service-connected hearing loss. These evaluations are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. To evaluate the degree of disability from defective hearing, the revised rating schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. The regulations provide that in cases of exceptional hearing loss, i.e. when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. See 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) provide that when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results is the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. A noncompensable evaluation is provided where hearing in the better ear is I and hearing in the poorer ear is I through IX; where hearing in the better ear is II, and hearing in the poorer ear is II to IV; or where there is level III hearing in both ears. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. A compensable evaluation of 10 percent is assigned where hearing in the better ear is I and hearing in the worse ear is X or XI; where hearing in the better ear is II, and hearing in the worse ear is V to XI; where hearing in the better ear is III and hearing in the worse ear is IV to VI; or where hearing in the better ear is IV and hearing in the poorer ear is IV or V. Id. At the time of July 2004 VA examination, the Veteran reported having had progressive hearing loss in both ears. Audiological evaluation revealed the Veteran to have decibel level readings of 10, 20, 25, and 45 in the right ear, and 10, 25, 65, and 55 in the left ear, at 1000, 2000, 3000, and 4000 Hertz. Speech recognition testing was 100 percent in the right ear and 96 percent in the left ear. At the time of a December 2009 VA examination, audiological testing revealed decibel level readings of 10, 20, 25, and 45 in the right ear, and 10, 25, 65, and 55 in the left ear, at 1000, 2000, 3000, and 4000 Hertz. Speech recognition testing was 100 percent in the right ear and 96 percent in the left ear. However, as a result of the February 2011 Board remand, treatment records were obtained from the VA Medical Center where the examination was performed in December 2009 which revealed different audiological results. Audiological results revealed decibel level readings of 20, 30, 35, and 50 in the right ear, and 20, 40, 70, and 75 in the left ear, at 1000, 2000, 3000, and 4000 Hertz. Speech recognition testing was 96 percent in the right ear and 88 percent in the left ear. For rating purposes, the Board will accept these readings as the appropriate December 2009 readings for determining the proper disability evaluation. In a April 2011 addendum, the VA examiner indicated that the test results were not exactly the same in July 2004 and December 2009. It was noted that hearing dropped slightly between 2004 and 2009, more in the left ear than the right. The examiner stated that the hearing loss noted in December 2009 typically interfered most with word understanding in competing noise. The examiner indicated that the Veteran might have difficulty hearing spoken guidance, instructions, or comments from others when in noise or when listening from a distance of more than 6 feet. It was also noted that he might possibly have slight difficulty understanding telephone communication, especially during telephone exchanges. It was further indicated that that once the Veteran understood the topic at hand, the hearing loss should not interfere with completion of physical or sedentary work. It was also noted that he should understand speech in noise or at a short distance more easily if he used hearing aids. Hearing impairment is level I where speech discrimination percentage is 92-100 and the puretone threshold average ranges from 0 to 57. Level II impairment is either when there is speech discrimination of 92-100 percent and a puretone threshold average of 58 to 81 or where there is speech discrimination of 84-90 with a puretone threshold average of 0 to 57. Level III hearing impairment requires a puretone threshold average of 82 to 97 where speech discrimination is 92-100 percent; speech discrimination of 84 to 90 percent with a puretone threshold average of 58 to 81 or speech discrimination of 76 to 82 percent and a puretone threshold average of 0 to 49. Level IV hearing impairment requires a puretone threshold average of 98+ where speech discrimination is 92-100 percent; speech discrimination of 84 to 90 percent with a puretone threshold average of 82 to 98+, speech discrimination of 76 to 82 percent and a puretone threshold average of 50 to 73; and speech discrimination of 68 to 74 percent and a puretone threshold average of 0 to 49. 38 C.F.R. § 4.85, Table VI. In this case, applying the results of the VA audiological examinations to Table VI yielded a Roman numeral value of I for the right ear and I for the left ear for the July 2004 VA examination and a Roman numeral value of I for the right ear and II for the left ear for the December 2009 examination results. Applying the values from both examinations to Table VII, the Board finds that the Veteran's bilateral hearing loss is evaluated as 0 percent disabling. Simply stated, the results do not provide a basis to grant a higher disability rating. An exceptional pattern of hearing impairment has not been demonstrated; therefore, the provisions of 38 C.F.R. § 4.86 are inapplicable for that portion of the rating period on appeal. Although the VA examinations and treatment records show that the Veteran clearly has hearing loss, the audiometric test results do not support entitlement to an increased evaluation for bilateral hearing impairment. The Board has reviewed all the medical records in the claims file and found that there is no evidence related to hearing loss that supports a higher rating. The VA audiological examiners addressed the functional effect of the Veteran's hearing loss by noting that the hearing loss cause little difficulty if the Veteran wore hearing aids. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). A VA audiologist must fully describe the functional effects caused by a hearing disability in the final report of the examination to facilitate determinations regarding extraschedular consideration. Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran himself does not elaborate on any further functional impairment caused by his bilateral hearing loss not captured by the examinations. The Veteran's contentions presented on appeal have been accorded due consideration; however, the Board concludes that the recent medical findings discussed above are more probative of the current level of disability. The Veteran's lay statements as to the frequency and severity of his symptoms have been considered. However, the Board attaches greater probative weight to the clinical findings of skilled, unbiased professionals. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (holding that interest in the outcome of a proceeding may affect the credibility of testimony). The preponderance of the evidence is against a compensable rating for the Veteran's bilateral hearing loss. Thus, the benefit-of-the doubt doctrine does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Hiatal Hernia Service connection is presently in effect for a hiatal hernia which has been assigned a 10 percent disability evaluation under Diagnostic Code 7346. Under Diagnostic Code 7346, a 60 percent evaluation requires symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia or other symptom combinations productive of severe impairment of health. A 30 percent evaluation is warranted for hiatal hernia with persistently recurrent epigastric distress with dysphagia, pyrosis and regurgitation accompanied by substernal or arm or shoulder pain, productive of a considerable impairment of health. A 10 percent evaluation is warranted for two or more of the symptoms for the 30 percent evaluation of less severity. 38 C.F.R. § 4.114, Diagnostic Code 7346 (2011). Ratings under diagnostic codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. Private treatment records associated with the claims folder reveal that testing performed in October 2005 revealed esophagitis, duodenitis, two gastric erosions, and a medium hiatal hernia. The Veteran was prescribed Prevacid. At the time of a December 2005 follow-up outpatient visit, the Veteran was again diagnosed as having hiatal hernia and gastroesophageal reflux disorder (GERD). At the time of the visit, it was noted that the Veteran was not experiencing any abdominal pain, weight loss, nausea, vomiting, hematemesis, dysphagia, acid reflux, heart burn, boating or flatulence. He was noted to be feeling better with Prevacid and Imodium. At the time of a November 2009 VA examination, the Veteran reported that he was taking Omeprazole, which was controlling his symptoms fairly well. He stated that he had regurgitation of bile-like fluid occasionally, but these symptoms occurred less than 1-2 times per month. He denied any recent dysphagia, nausea, vomiting, heartburn, indigestion, abdominal pain, hematemesis, or melena. The condition was noted to be stable with medication. The Veteran denied a history of dysphagia. He reported a history of esophageal distress less than weekly, which was accompanied by pain. The Veteran was also noted to have heartburn on a less than weekly basis. Regurgitation was also noted to be less than weekly, with a bile-like substance. There was no history of hematemesis or melena and no history of esophageal dilation. Physical examination revealed no signs of melena and the Veteran's overall general health was noted to be fair. The abdomen was soft and nontender and bowel sounds were positive. The examiner stated that the Veteran was not employed and that his GERD had no impact on his activities of daily living. A diagnosis of hiatal hernia with gastritis, managed with medication, with no acute issues, was rendered. The criteria for a 30 percent disability evaluation for GERD have not been met at anytime. Although the Veteran has been shown to have epigastric distress, it has not been reported, or found, to be persistently recurrent. There have also been no findings of dysphagia. Although pyrosis and regurgitation have been reported on a less than weekly basis, there have been no reports or findings of substernal or arm or shoulder pain. Moreover, there has been no demonstration of considerable impairment of health due to the hiatal hernia/GERD, as is required for a 30 percent evaluation. In addition to there having been no findings of considerable impairment of health, the Veteran's statements do not demonstrate that his hiatal hernia/GERD causes considerable impairment of health. The criteria for a 60 percent disability evaluation have not been met at any time as the Veteran has not been shown to have material weight loss, hematemesis, or melena with moderate anemia or other symptom combinations productive of severe impairment of health. Thus, an increased evaluation would not be warranted under DC 7346 at anytime during the course of the appeal. TMJ Under Diagnostic Code 9904, a 0 percent disability rating is applicable for a slight displacement of the mandible, a 10 percent disability evaluation is contemplated for moderate displacement, and a 20 percent disability evaluation is warranted for severe displacement. Ratings are dependent upon the degree of motion and relative loss of masticatory function. 38 C.F.R. § 4.150, Diagnostic Code 9904. Under Diagnostic Code 9905 for temporomandibular articulation, a 10 percent rating is assigned when the inter-incisal range of motion is limited to between 31 and 40 mm. A 10 percent rating may also be assigned when the range of lateral excursion is limited to between 0 and 4 mm. A 20 percent rating is assigned when the inter-incisal range of motion is between 21 and 30 mm. 38 C.F.R. § 4.150, Diagnostic Code 9905. At the time of a July 2004 VA examination, the Veteran reported having a problem with his jaw locking at the jaw joint. He indicated that when this happened, he would have to push it back up. There was no pain associated with this and it did not affect his eating or chewing habits. Physical examination revealed that the temporomandibular joint did have some cracking sound and feeling in the left temporomandibular joint but the right temporomandibular joint was felt to be normal. A diagnosis of osteoarthritis of the temporomandibular joints without a clear history of dislocation was rendered. At the time of a November 2009 VA examination, the Veteran had no muscle of mastication tenderness. There was a loud click to the left temporomandibular joint on opening and closing and there was some crepitus to the right temporomandibular joint on opening and closing. There was also some pain with opening and closing, especially to the left joint. As to excursion, there appeared to be a 50 percent reduction in right and left excursions while protrusive excursions appeared to be normal. His intercisal opening distance was 40 millimeters, which was the lower natural anterior teeth against an axillary denture. The Veteran wore a full upper denture. There was no numbness or neurological deficit to the jaw or face and there were no soft tissue lesion other than periodontal disease. The examiner rendered a diagnosis of severe degenerative joint disease, bilaterally, to the temporomandibular joints, which appeared to be responsible for the limited motion, especially on the lateral excursions. The Veteran did suffer from chronic pain, especially if you had him open widely. The criteria for an evaluation in excess of 10 percent have not been met. In this regard, the evidence does not reflect inter-incisal range of motion to 20 mm. or less; rather, the inter-incisal opening was to 40 mm. on VA examination. While the Veteran had limited range of lateral excursion, Diagnostic Code 9905 provides for a maximum rating of 10 percent for lateral excursion from 0 to 4 mm., and specifically instructs that ratings for limited inter-incisal movement shall not be combined with ratings for limited lateral excursion. Thus, a rating in excess of 10 percent, pursuant to Diagnostic Code 9905, is not warranted. Consistent with DeLuca, the Board has considered the Veteran's functional loss due to pain and other factors set forth in 38 C.F.R. §§ 4.40 and 4.45; however, the medical evidence simply does not reflect that the Veteran has functional impairment associated with his service-connected temporomandibular joint which is so disabling as to effectively result in limitation of motion as required for assignment of a rating in excess of 10 percent. Additionally, there is no evidence of malunion of the mandible with severe displacement during the period in question. Thus, the criteria for a rating in excess of 10 percent, pursuant to Diagnostic Code 9904, are not met. Under these circumstances, the Board finds that the criteria for assignment of a rating in excess of 10 percent for the Veteran's temporomandibular joint disability are not met. Orthopedic Manifestations of Degenerative Disc Disease of the Lumbosacral Spine Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is assigned where X-ray evidence shows involvement of two or more major joints or 2 or more minor joint groups. Where there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, a 20 percent evaluation is assigned. Note (1) to Diagnostic Code 5003 states that the 20 and 10 percent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion." Id. Diseases and injuries to the spine are to be evaluated under diagnostic codes 5235 to 5243 as follows: With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease Unfavorable ankylosis of the entire spine: 100 Unfavorable ankylosis of the entire thoracolumbar spine: 50 Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine: 40 Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine: 30 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: 20 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: 10 Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion 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. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is as follows: With incapacitating episodes having a total duration of at least six weeks during the past 12 months: 60 With incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months: 40 With incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months: 20 With incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months: 10 Note (1): For purposes of evaluations under 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating for Formula and Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5243. At the time of a July 2004 VA examination, the Veteran reported that his low back pain had become quite significant over the past three years. Physical examination revealed that he walked with a slow gait and used a cane. Flexion was to 20 degrees, while extension was to neutral, and right and left side bending were to 20 degrees. The Veteran described no additional effects on his occupation or activities of daily living and no additional limitations following repetitive use or during flare-ups. The Veteran was diagnosed as having severe degenerative disc disease of the lumbar spine. At the time of a March 2007 VA examination, the Veteran indicated that his low back condition had worsened. The Veteran was noted to have a history of fatigue, decreased motion, stiffness, weakness, and pain. The pain was noted to be dull and across the lumbar area. It occurred daily and would last for hours. There were spinal flare-ups, which the Veteran stated would last for one or two days. The Veteran reported severe functional impairment with the flare-ups. Physical examination revealed flexion from 0 to 20 degrees. After repetitive use, flexion was from 0 to 15 degrees. Extension was from 0 to 5 degrees. Lateral flexion, left and right, was to 10 degrees. Lateral rotation, left and right, was from 0 to 10 degrees. A diagnosis of multilevel degenerative disc disease of the lumbar spine was rendered. The examiner noted that the Veteran was not employed. He indicated that the Veteran's low back condition prevented exercise, sports, recreation, and traveling. It also had a severe impact on shopping, bathing and grooming, and a moderate impact on dressing and toileting. At the time of a November 2009 VA examination, the Veteran was noted to be retired. The Veteran indicated that daily activities were affected as he could not stand for long periods of time and could only walk 40 yards before having to sit and rest. The Veteran had limited range of motion and reported constant pain. He had had no incapacitating events. Daily activities were affected by limited walking and standing. Bathing and dressing were difficult as a result of his back. Physical examination revealed that the Veteran had difficulty getting out of the chair, but this was not only due to his back. The Veteran had normal posture. Flexion was from 0 to 50 degrees and he had no extension. He also had no rotational or lateral flexion. Repetitive motion did produce fatigue and weakness but no additional loss of motion. A diagnosis of degenerative disc disease of the lumbar spine was rendered. While the Board does not doubt that the Veteran's motion is limited as evidenced by the above objective medical findings, and cause him many problems (a 40% evaluation is a clear indication of the problems he is having, indicating a 40 percent reduction in the Veteran's ability to work) there has been no demonstration that his range of motion has been limited to that akin to unfavorable ankylosis of the entire thoracolumbar spine. Ankylosis has simply not been indicated. The competent medical evidence reflects consideration of the Veteran's complaints of pain, weakness and fatigability by medical professionals. The Veteran is competent to report that he is worse or entitled to a higher evaluation. However, the observation of a skilled professional is more probative of the degree of the Veteran's impairment. Even if there were demonstration of additional loss of motion upon repetitive movement, neither the actual range of motion nor any functional limitation, warrants an evaluation in excess of 40 percent for limitation of motion based upon the appropriate codes governing limitation of motion. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206-7. Although the Veteran has indicated that he has flare-ups which cause him to have severely limited motion, the record does not contain evidence of physician prescribed bed rest. Moreover, there Veteran was noted to have had no incapacitating episodes at the time of his most recent VA examination. Thus, an evaluation in excess of 40 percent would not be warranted based upon incapacitating episodes. In sum, an evaluation in excess of 40 percent, to include "staged" ratings, is not warranted as it relates to limitation of motion or incapacitating episodes as the record does not contain medical evidence showing that the Veteran's low back symptomatology approximates the criteria for the next higher rating. Specifically, the evidence does not show symptomatology consistent with unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. Should the Veteran's disability picture change in the future, he may be assigned a higher rating. See 38 C.F.R. § 4.1. Finally, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. 38 U.S.C.A. § 5107(b); Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55-57. Extraschedular Consideration In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, 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. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1). (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step--a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. The Veteran's bilateral hearing loss, hypertension, TMJ, hiatal hernia, and degenerative disc manifestations are contemplated by the rating schedule. While the Veteran has been unemployed for a period of time, there has been no indication that these disabilities cause marked interference with employment. None of the disabilities have required any recent periods of hospitalization. No other exceptional factors have been reported. As such, the criteria for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996). Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). 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; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The Board notes that the Veteran's status has been substantiated. As it relates to all claims, the Board notes that in July 2004, January 2008, October 2009 and February 2011 letters, the RO provided the Veteran with notice that informed him of the evidence needed to substantiate his claims. The letters also told him what evidence he was responsible for obtaining and what evidence VA would undertake to obtain. The letters further told him to submit relevant evidence in his possession. The Court has also held that 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was also provided with notice as to the disability rating and effective date elements of the claim in January 2008, October 2009 and February 2011 letters. The duty to notify was not satisfied prior to the initial unfavorable decision on the claim by the AOJ. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). In this case, a portion of the VCAA duty to notify was satisfied subsequent to the initial AOJ decision. However, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AOJ also readjudicated the case by way of a supplemental statement of the case after the notice was provided. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. VA has a duty to assist a veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, all evidence necessary to decide this claim has been obtained. No other relevant records have been identified. The Veteran has also been afforded several VA examinations. The Veteran's complaints, as well as the necessary findings to properly rate the Veteran's disabilities, were set forth in the examination reports. As such, the VA examinations performed and prepared in conjunction with the Veteran's claim are deemed to be adequate to properly decide the Veteran's current appeal. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of his statements and arguments presented by his representative. He was also given an opportunity to appear at a hearing. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran in substantiating this claim. ORDER A disability evaluation in excess of 10 percent for hypertension is denied. An initial compensable disability evaluation for bilateral hearing loss is denied. A disability evaluation in excess of 10 percent for TMJ is denied. A disability evaluation in excess of 10 percent for hiatal hernia is denied. A disability evaluation in excess of 40 percent for orthopedic manifestations of degenerative disc disease of the lumbar spine is denied. REMAND As it relates to the claims of increased evaluations for left and right elbow disorders, the Boards notes that treatment records associated with the claims folder make reference to possible neurological impairment in the Veteran's service-connected elbows. Based upon these reports it appears that the Veteran's service-connected elbow disorders may have worsened. VA is obligated to afford a veteran a contemporaneous examination where there is evidence of an increase in the severity of the disability. VAOPGCPREC 11-95 (1995). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). Expedited handling is requested.) 1. Schedule the Veteran for a VA examination to determine the current severity of his service-connected left and right elbow disorders. All indicated tests and studies must be performed and all findings must be reported in detail. The claims folder should be made available to the examiner and the examiner should note such review in his/her report. Ranges of motion should be reported in degrees. The examiner should determine whether the service-connected left and right elbow disorders are manifested by weakened movement, excess fatigability, incoordination, pain or flare-ups. Such inquiry should not be limited to muscles or nerves. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, pain or flare-ups. The examiner should also comment on what, if any, neurological impairment is caused by the Veteran's service-connected elbow disorders. If neurological involvement is present, the examiner should identify the nerves involved and whether the impairment is mild, moderate, or severe in nature. 2. To help avoid future remand, VA must ensure the required actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, undertake corrective action before the claims file is returned to the Board. See Stegall v. West, 11 Vet. App. 268 (1998). 3. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the remaining claims on appeal. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for future review. The appellant has the right to submit additional evidence and argument on the 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. 2011). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs