Citation Nr: 1306744	
Decision Date: 02/27/13    Archive Date: 03/01/13

DOCKET NO.  03-26 332	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to service connection for neuropathy.  

2.  Entitlement to an evaluation in excess of 10 percent for bilateral hearing loss, from the initial grant of service connection.  

3.  Entitlement to an evaluation in excess of 10 percent for degenerative disc disease of the thoracolumbar spine, from the initial grant of service connection.  


REPRESENTATION

Appellant represented by:	Virginia A. Girard-Brady, Attorney


WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Jarrette A. Marley, Associate Counsel


INTRODUCTION

The Veteran had active service from September 1972 to March 1982, from September 1984 to January 1987, and from September 1990 to June 1991.  

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision by the Nashville, Tennessee Department of Veterans Affairs (VA) Regional Office which granted an increased 10 percent rating for the Veteran's service-connected left ear hearing loss.  Subsequently, a July 2003 rating decision granted service connection for bilateral hearing loss, rated 10 percent disabling, effective February 18, 2003 (the date of claim).  

In July 2004, the Board issued a decision that denied the Veteran's claim for an increased rating for bilateral defective hearing.  He appealed that decision to the United States Court of Appeals for Veterans Claims (Court).  In August 2005, the Court vacated the Board's decision and remanded the issue to the Board for further action consistent with a Joint Motion for Remand (Joint Motion) by the parties.  

In March 2006, December 2007, and July 2010, the Board remanded the matter for further development.  In October 2011, the Board issued a decision denying the claim.  This decision was vacated by the Court in August 2012 pursuant to a Joint Motion.  In this regard, the Board notes the August 2012 Court Joint Motion for Partial Remand discussion was limited to the matter of extraschedular consideration of the Veteran's claim for an increased rating for bilateral defective hearing.  However, because the Court vacated the entire decision, the Board's re-adjudication will include both schedular and extraschedular consideration.  


Regarding neuropathy and degenerative disc disease, an April 2009 rating decision denied service connection for neuropathy, and a May 2009 rating decision granted service connection for degenerative disc disease of the thoracolumbar spine, rated 10 percent disabling, effective December 13, 2004 (the date of claim).  In October 2011, the Board, in pertinent part, remanded the service connection for neuropathy and increased rating for degenerative disc disease of the thoracolumbar spine claims.  These matters have since been returned to the Board.  

The issue of service connection for neuropathy is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office.


FINDINGS OF FACT

1.  At no time during the appeal period is the Veteran's hearing acuity shown to have been worse than Level IV in the right ear or worse than Level VIII in the left ear; the rating criteria contemplate the Veteran's hearing loss symptoms.  

2.  At no time during the appeal period is the Veteran's degenerative disc disease of the thoracolumbar spine shown to have been manifested by forward flexion of the thoracolumbar spine limited to 60 degrees or less or combined range of thoracolumbar motion 120 degrees or less; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis is not shown; incapacitating episodes are not shown; neurologic symptoms warranting a separate rating are not shown; and the spine is not ankylosed.  


CONCLUSIONS OF LAW

1.  The criteria for an initial evaluation in excess of 10 percent for bilateral defective hearing are not met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.85, Diagnostic Code 6100, 4.86 (2012).  

2.  The criteria for an initial evaluation in excess of 10 percent for degenerative disc disease of the thoracolumbar spine are not met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5237, 5243 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

A. Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The VCAA applies to the instant claim.  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VCAA notice requirements apply to all five elements of a service connection claim: 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, 484-86 (2006), aff'd Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  

As the July 2003 and May 2009 rating decisions on appeal granted service connection and assigned disability ratings and effective dates for the awards, VCAA notice had served its purpose, and its application was no longer required.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  August 2003 and January 2010 statements of the case (SOCs) provided notice on the "downstream" issues of entitlement to increased initial ratings; and May 2011 and November 2012 supplemental SOCs (SSOCs) readjudicated the matters after the Veteran and his attorney had opportunity to respond.  38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006).  The Veteran has had ample opportunity to respond/supplement the record.  He has not alleged that notice in this case was less than adequate.  See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008).  

With respect to the duty to assist in this case, all of the Veteran's available service treatment records and all VA and identified private treatment records have been obtained and associated with the claims file.  Concerning his defective hearing, the Veteran was examined by VA at least four times during the pendency of this appeal and testified at a video conference hearing in February 2004.  Additionally, neither the Veteran nor his attorney have made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the issues on appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal.  See Shinseki v. Sanders, 556 U.S. 396 (2009) (discussing the rule of prejudicial error).  

Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file.  See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).  Therefore, the Board finds that the duty to notify and the duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal.  

B. Legal Criteria, Factual Background, and Analysis

Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file and in Virtual VA (i.e., VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran).  

In general, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  

Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.  

Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55 (1994).  However, "staged" ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999).  

Bilateral Defective Hearing

The appropriate evaluation for hearing impairment is determined under the criteria in 38 C.F.R. §§ 4.85, 4.86.  

The VA Schedule for Rating Disabilities (Rating Schedule) provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, based on testing (by a state-licensed audiologist) including puretone thresholds and speech discrimination (Maryland CNC test).  See 38 C.F.R. § 4.85.  Where there is an exceptional pattern of hearing impairment (as defined in 38 C.F.R. § 4.86), the rating may be based solely on puretone threshold testing.  See 38 C.F.R. § 4.85, Table VIa.  One exceptional pattern of hearing impairment occurs when the puretone thresholds in each of the four frequencies (1000, 2000, 3000, and 4000 Hertz) are 55 decibels or greater.  38 C.F.R. § 4.86(a).  Another pattern occurs when the puretone threshold at 1000 Hertz is 30 decibels or less, and the threshold at 2000 Hertz is 70 decibels or more.  38 C.F.R. § 4.86(b).  Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment in each ear.  

Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).  

The Veteran contends that his hearing loss is more severe than the 10 percent rating currently assigned and believes that a higher rating should be assigned.  

On April 2003 VA audiological evaluation, puretone thresholds, in decibels, were: 




HERTZ


	

1000
2000
3000
4000
RIGHT

35
40
65
85
LEFT

70
70
105
105

The average puretone thresholds were 56 decibels in the right ear and 88 decibels in the left ear.  Speech audiometry revealed speech recognition ability of 88 percent in the right ear, and 82 percent in the left ear.  Tympanogram was flat in the left ear, possibly consistent with eustachian tube malfunction.  The diagnoses were sensorineural hearing loss in the right ear and mixed hearing loss in the left ear.  

July 2004 VA audiogram, reported in the form of a graphic-type audiogram, revealed puretone thresholds, in decibels, were: 




HERTZ


	

1000
2000
3000
4000
RIGHT

30
30
70
80
LEFT

60
60
95
105

As the VA audiogram was conveyed in straightforward graph form, the Board finds that it is able to interpret the findings.  See Kelly v. Brown, 7 Vet. App. 471, 474 (1995) (wherein the Court stated that it does not have the power to interpret the results of a graphic-type audiogram, and further indicating the Board is empowered to make such factual findings in the first instance).  The average puretone thresholds were 53 decibels in the right ear and 80 decibels in the left ear.  It was noted that there was no significant change in hearing thresholds since the April 2003 VA audiological evaluation.  

On February 2007 VA audiological evaluation, puretone thresholds, in decibels, were: 




HERTZ


	

1000
2000
3000
4000
RIGHT

30
35
75
80
LEFT

45
45
70
90

The average puretone thresholds were 55 decibels in the right ear and 63 decibels in the left ear.  Speech audiometry revealed speech recognition ability of 80 percent in both ears.  

On April 2008 VA audiological evaluation, puretone thresholds, in decibels, were: 




HERTZ


	

1000
2000
3000
4000
RIGHT

30
35
75
80
LEFT

45
50
70
85

The average puretone thresholds were 55 decibels in the right ear and 63 decibels in the left ear.  Speech audiometry revealed speech recognition ability of 88 percent in both ears.  

On November 2010 VA audiological evaluation, puretone thresholds, in decibels, were: 




HERTZ


	

1000
2000
3000
4000
RIGHT

30
35
70
80
LEFT

40
50
75
95

The average puretone thresholds were 54 decibels in the right ear and 65 decibels in the left ear.  Speech audiometry revealed speech recognition ability of 88 percent in both ears.  The examiner commented that there were no effects on the Veteran's usual daily activities due to his defective hearing.  

In this case, the audiometric findings from the four VA audiological examinations and the VA July 2004 audiogram (reported in the form of a graphic-type audiogram) during the pendency of this appeal were not materially different, and when considered in light of the rating criteria, do not warrant the assignment of an evaluation in excess of 10 percent.  

Applying the results of the April 2003 VA examination to Table VI produces a finding that the Veteran had Level II hearing acuity in the right ear, and Level V hearing acuity in the left ear (warranting a 10 percent rating).  Applying the results to Table VIa (as there is an exceptional pattern of hearing impairment in the left ear under § 4.86(a)) produces a finding that the Veteran had Level VIII hearing acuity in the left ear (warranting a 10 percent rating).  

Regarding the July 2004 VA audiogram, the Board notes that the audiogram was conducted without a controlled speech discrimination test in accordance with 38 C.F.R. § 4.85.  Accordingly, the July 2004 audiometry is inadequate, warranting no probative value.  

Applying the results of the February 2007 VA examination to Table VI produces a finding that the Veteran had Level IV in both ears (warranting a 10 percent rating).  

Applying the results of the April 2008 VA examination to Table VI produces a finding that the Veteran had Level II hearing acuity in the right ear, and Level III hearing acuity in the left ear (warranted a 0 percent rating).  

Applying the results of the November 2010 VA examination to Table VI produces a finding that the Veteran had Level II hearing acuity in the right ear, and Level III hearing acuity in the left ear (warranting a 0 percent rating).  

Based on the foregoing, the Board finds that there is no basis under the applicable schedular criteria for the assignment of an evaluation in excess of 10 percent.  As the criteria for the 10 percent rating currently assigned encompasses the greatest degree of severity of the Veteran's defective hearing at any time during the appeal period, the Board finds that "staged" ratings are not warranted.  The preponderance of the evidence is against this claim; accordingly, the benefit of the doubt doctrine does not apply.  The claim must be denied.  

Degenerative Disc Disease of the Thoracolumbar Spine

The Veteran's service-connected degenerative disc disease of the thoracolumbar spine has been assigned a 10 percent rating.  Consequently, the focus is on those criteria that would afford a rating in excess of 10 percent.  

The Veteran's service-connected degenerative disc disease of the thoracolumbar spine is rated under Code 5237 (for lumbosacral strain).  Lumbosacral strain is rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), and intervertebral disc syndrome is rated under the General Rating Formula or based on incapacitating episodes, whichever is more favorable to the veteran.  38 C.F.R. § 4.71a, Codes 5237, 5243.  

Under the General Rating Formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply.  A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion for 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.  A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is 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 40 percent rating is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less; or where there is favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine.  And a 100 percent rating is warranted for unfavorable ankylosis of the entire spine.  

There are several notes following the General Rating Formula criteria, which provide: (1) Associated objective neurological abnormalities are to be rated separately under an appropriate diagnostic code.  (2) For purposes of VA compensation, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateroflexion is 0 to 30 degrees, and left and right lateral rotation is 0 to 30 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateroflexion, and left and right rotation.  The normal combined range of the thoracolumbar spine is 240 degrees.  (3) In exceptional cases, an examiner may state that, because of age, 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 the regulation.  38 C.F.R. § 4.71a.  

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, Note 1 following the Formula for Rating Based on Incapacitating Episodes.  As there is no evidence, or allegation, that the Veteran has ever had an incapacitating episode (bed rest prescribed by a physician), rating based on such episodes would be inappropriate.  

When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  

Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing.  See 38 C.F.R. §§ 4.40, 4.45.  Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above.  In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.  

The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record.  Burton v. Shinseki, 25 Vet. App. 1 (2011).  

The instant claim was received in December 2004.  

On April 2008 VA examination, the Veteran complained of constant, daily lower back pain (described as severe) and soreness, as well as decreased range of motion, stiffness, weakness, and spasms.  He reported he has weekly severe flare-ups of his back disability, lasting hours, and alleviated by staying in bed until it resolves.  He used no devices or aids to ambulate.  On physical examination, the Veteran's gait was normal.  There was no evidence of abnormal spinal curvatures.  Range of motion studies revealed the following: flexion from 0 to 90 degrees (with pain beginning at 30 degrees); extension from 0 to 30 degrees (with pain throughout range of motion testing); bilateral lateral flexion from 0 to 30 degrees (with pain throughout range of motion testing); and bilateral lateral rotation from 0 to 30 degrees (with pain throughout range of motion testing).  There was objective evidence of pain after repetitive use but no additional loss of motion on repetitive motion testing.  There was no evidence of thoracic weakness, tenderness, guarding, atrophy, or spasm.  Lumbosacral spine x-rays revealed L5-S1 spondylolisthesis with bilateral L5 spondylolysis and associative findings of degenerative disc disease at that level.  The diagnosis was degenerative spondylolisthesis of L5-S1 with associated low back pain.  

September 2009 private treatment records note the Veteran's complaint of neck and back pain (rated an 8 on a scale to 10) never completely relieved by pain medicine.  

On January 2012 VA examination, the Veteran reported he takes pain medication for his back disability.  He also reported that he has flare-ups of his thoracolumbar spine disability during which he cannot sit for more than a few minutes and has to keep moving.  He denied the use of any assistive devices to aid with locomotion.  On physical examination, range of motion studies revealed the following: flexion to 90 degrees (with pain beginning at 70 degrees); extension to 30 degrees (without pain on motion); bilateral lateral flexion to 30 degrees (without pain on motion); and bilateral lateral rotation to 30 degrees (without pain on motion).  The Veteran had no additional limitation of range of motion of the thoracolumbar spine following repetitive range of motion testing.  It was noted he had no functional loss and/or functional impairment of the thoracolumbar spine.  The diagnosis was lumbar strain.  The examiner noted that the Veteran was retired.  It was opined that he has mild to moderate impairment of his thoracolumbar spine.  Given that his skill is in heavy equipment, it is difficult for the Veteran to be gainfully employed in an active setting.  However, the examiner opined he could envision gainful employment for the Veteran in an inactive supervisory role if he can find one.  

Based on the evidence above, the Board finds no distinct period of time during the appeal period when symptoms of the Veteran's degenerative disc disease of the thoracolumbar spine were of (or approximated) such nature and gravity as to warrant a rating in excess of 10 percent.  Thoracolumbar forward flexion has consistently been no less than 90 degrees (even with consideration of range of motion with pain and after repetitive range of motion testing), and the combined ranges of motion have consistently exceeded 120 degrees.  Additional factors that could provide a basis for an increase have also been considered.  However, it is not shown that the Veteran has any functional loss beyond that being currently compensated.  38 C.F.R. §§ 4.10, 4.40, 4.45; DeLuca, 8 Vet. App. at 205.  There has been no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour.  Significantly, examination has found no increase in impairment of function with repetitive testing (i.e., on use).  Consequently, the next higher (20 percent) rating is not warranted under the General Rating Formula.  There is no evidence that the spine is ankylosed.  

The Board notes the Veteran's complaints of pain radiating down into his knees.  Such complaint is associated with his claim for service connection for neuropathy, and is addressed in the remand portion of the decision below.  There is no evidence of any further neurologic disability related to the Veteran's service-connected thoracolumbar spine disability.  Notably, the January 2012 examiner specifically found that there was no other neurologic abnormalities or findings related to the Veteran's thoracolumbar spine disability.  

As the criteria for the 10 percent rating currently assigned encompasses the greatest degree of severity of the Veteran's degenerative disc disease of the thoracolumbar spine shown at any time during the appeal period, the Board finds that "staged" ratings are not warranted.  The preponderance of the evidence is against this claim.  Accordingly, the benefit of the doubt doctrine does not apply.  The claim must be denied.  

Extraschedular Evaluation

The Board has also considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis.  An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993).  

Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is, thus, found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto 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 to determine whether the veteran's disability picture requires the assignment of an extraschedular rating.  

Regarding the Veteran's service-connected thoracolumbar spine disability, under Thun, the initial step in a determination as to whether there should be referral for extraschedular consideration is a comparison between the levels of symptoms shown with the schedular criteria for rating the disability.  Here, the schedular rating contemplated the symptoms shown and the associated functional limitations the Veteran and VA examiners have described.  The noted manifestations of the Veteran's thoracolumbar spine disability (pain, loss of motion, stiffness, weakness, and spasms) are entirely encompassed by the schedular criteria in the General Rating Formula for Diseases and Injuries of the Spine.  See 38 C.F.R. § 3.321(b).  Consequently, referral for extraschedular consideration is not warranted.  

Regarding the Veteran's service-connected bilateral defective hearing, the Board acknowledges that the Court has recently vacated and remanded the Board's prior decision to the extent it denied entitlement to an increased rating for the Veteran's bilateral defective hearing, in large part due to inadequate reasons or bases for denying referral for extraschedular consideration.  The Veteran and his attorney have expressed several complaints regarding his defective hearing, including being unable to work high-paying jobs involving the operation of heavy machinery because the jobs require workers to listen for horn signals which are outside of the Veteran's range of hearing in a noisy work environment.  He has also related he had to work carpentry, but that he was unable to work with other carpenters because he could not hear them.  Recently, in January 2013 correspondence from the Veteran's attorney, it has been expressed that he has difficulty having conversations with people, is unable to hear the doorbell, rarely drives because of his inability to hear traffic sounds, and has to work in total independence as a result of his service-connected defective hearing.  

Under Thun, the initial step in a determination as to whether there should be referral for extraschedular consideration is a comparison between the levels of symptoms shown with the schedular criteria for rating the disability.  After a review of the evidence and the Veteran's claims file, the medical evidence fails to show anything unique or unusual about the Veteran's bilateral defective hearing.  While the condition undoubtedly causes some impairment, no symptoms have been described that would render the schedular criteria inadequate.  The Board is sympathetic of the fact that the Veteran's defective hearing may have resulted in him earning less income by becoming a carpenter.  However, the loss of income is not relevant to the threshold determination of adequacy of the schedular rating.  See Thun, 22 Vet. App. at 117, note 3.  The Board does not find that the Veteran's defective hearing interferes with his work beyond the interference contemplated by the currently assigned 10 percent rating.  While the Veteran and his attorney have raised several arguments to demonstrate marked interference with employment, the Board need not discuss such unless it determines that the first prong in the Thun analysis is satisfied, which the Board does not find.  The functional loss noted and self-reported by the Veteran, in essence, difficulty hearing in a work environment, is fully contemplated by the schedular criteria.  See 38 C.F.R. § 4.1.  Consequently, those criteria are not inadequate.  See Thun v. Peake, 22 Vet. App. 111 (2008).  Therefore, referral for consideration of an extraschedular rating is not warranted.  

Finally, the Court held that entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate 'claim' for benefits, but rather, can be part of a claim for increased compensation.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  In this regard, the Board notes that it is unclear whether the Veteran is employed.  As noted above, the Veteran has argued that he can no longer work as a heavy equipment operator, and that he has worked in carpentry.  At the February 2004 video conference hearing, he testified that he has not worked full-time in the last three years.  In January 2013 correspondence from the Veteran's attorney, it was noted he worked in total independence.  This reasonably reflects that the Veteran is employed, or at least is capable of full time employment.  Accordingly, the Board finds that the matter of a total rating based on individual unemployability is not raised by the record.  


ORDER

An evaluation in excess of 10 percent for bilateral defective hearing is denied.  

An evaluation in excess of 10 percent for degenerative disc disease of the thoracolumbar spine is denied.  


REMAND

Regarding the Veteran's claim for service connection for neuropathy, the Board remanded the matter in October 2011 for additional development.  In particular, the Board requested that the Veteran be afforded an examination to determine the nature and etiology of any identified neuropathy.  

The Veteran was afforded the requested VA examination in May 2012.  The examiner diagnosed the Veteran with peripheral neuropathy of the lower extremities for 10 years reflected by mild incomplete paralysis of the bilateral sciatic nerve.  The examiner opined that the claimed condition was less likely than not proximately due to or the result of his service-connected degenerative disc disease of the thoracolumbar spine, and that it was secondary to his diabetes.  Although to one trained in medicine, the basis for this conclusion may be obvious from the record, case law essentially requires the basis for the opinion to be expressed in order to afford it evidentiary weight.  The necessary explanation for this examiner's conclusion should be sought on Remand.  

Accordingly, the case is REMANDED for the following action:

1. The RO should arrange for the Veteran's claims file to be forwarded to the May 2012 VA examiner for review and a more thoroughly explained opinion as to why the Veteran's peripheral neuropathy is considered secondary to his diabetes and not his service-connected degenerative disc disease of his thoracolumbar spine.  

If the May 2012 examiner is unavailable, the Veteran's claims file should be forwarded to a neurological examiner for review and an opinion as to whether it is at least as likely as not that the Veteran's peripheral neuropathy is related to, or otherwise aggravated by, his service-connected thoracolumbar spine disability.  The examiner must explain the rationale for all opinions given.  

2. The RO should then readjudicate the Veteran's claim.  If it remains denied, the RO should issue an appropriate supplemental statement of the case, and afford the Veteran and his attorney the opportunity to respond.  The case should then be returned to the Board, if in order, for further review.  

The appellant has the right to submit additional evidence and argument on the matter 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).



______________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs