Citation Nr: 1315774	
Decision Date: 05/14/13    Archive Date: 05/15/13

DOCKET NO.  10-45 219	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for a left shoulder disability, to include as secondary to service-connected cervical spine disability. 

2.  Entitlement to an initial evaluation in excess of 10 percent for cervical spine strain with herniated disk at C3-4 with left radiculopathy.

3.  Entitlement to a compensable evaluation for a bilateral hearing loss disability. 

4.  Entitlement to a compensable evaluation for hypertension. 

5.  Entitlement to a compensable evaluation for gastroesophageal reflux disorder (GERD).


REPRESENTATION

Veteran represented by:	Military Order of the Purple Heart


ATTORNEY FOR THE BOARD

L. Jeng, Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from June 1971 to October 1976, and June 1977 to June 1992. 
 
This case comes before the Board of Veterans' Appeals (the Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which in part, denied service connection for a left shoulder disability; granted service connection for cervical spine strain with herniated disk at C3-4 with left radiculopathy and assigned a 10 percent disability evaluation; and continued non-compensable evaluations for a bilateral hearing loss disability, hypertension, and GERD.

With regard to the claim for an increased evaluation for hypertension, the Veteran submitted a Notice of Disagreement (NOD) in July 2010 specifically indicating that he disagreed with the evaluation assigned for hypertension in the June 2009 rating decision.  The RO then issued a Statement of the Case (SOC) in September 2010, and the Veteran subsequently filed a VA Form 9, Appeal to Board of Veterans' Appeals, in November 2010 indicating that he was limiting his appeal to specific issues and did not mention the hypertension claim.  The RO, however, continued to treat the issue as if it were on appeal and addressed it in a Supplemental Statement of the Case (SSOC) in September 2012.  Additionally, the RO certified the issue to the Board in October 2010, and  the Veteran's representative addressed the hypertension issue in its March 2013 Informal Hearing Presentation.  Therefore, the Board accepts the claim for an increased evaluation for hypertension as being on appeal.  See Percy v. Shinseki, 23 Vet. App. 37, 43-44 (2009) (finding that jurisdiction over claims vests in the Board when the agency of original jurisdiction takes some action to indicate the issues are still on appeal, regardless of whether a substantive appeal has been submitted).

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims.  A review of the documents in the electronic file to date reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal that the Board is adjudicating in this decision.

The issue of service connection for a left shoulder disability, to include as secondary to service-connected cervical spine disability, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The Veteran's cervical spine disability has not been manifested by unfavorable ankylosis of the entire cervical spine or productive of any incapacitating episodes within the past 12 months.  No neurological pathology consistent with a separate neurological disability has been shown. 

2.  The Veteran has demonstrated at worst Level II hearing acuity in the right ear and Level IV hearing acuity in the left ear.  

3.  Hypertension has been manifested by diastolic pressure readings predominantly below 100, and by systolic pressure readings below 160. 

4.  GERD has not been manifested by persistently recurrent epigastric distress with dysphagia or regurgitation accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.


CONCLUSIONS OF LAW

1.  The criteria for an initial evaluation in excess of 10 percent for cervical spine strain with herniated disk at C3-4 with left radiculopathy have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5242, 5243 (2012).

2.  The criteria for a compensable evaluation for a bilateral hearing loss disability have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. 
§§ 4.85, Diagnostic Code 6100, 4.86 (2012). 

3.  The criteria for a compensable evaluation for hypertension have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012)

4.  The criteria for a compensable evaluation for GERD have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.114, Diagnostic Code 7346 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

In correspondence dated in January 2009, prior to the June 2009 rating decision, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012).  Specifically, the RO notified the Veteran of information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide.  The January 2009 letter informed the Veteran that in order to establish higher ratings, the evidence would need to show that his hearing loss disability, hypertension, and GERD had increased in severity.  He was informed of the type of evidence that could be submitted to support his claims. The January 2009 letter also notified the Veteran of the process by which initial disability ratings and effective dates are established as set forth in Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

The January 2009 letter provided the Veteran with the notice required for the initial claim of service connection for a cervical spine disability.  Service connection was subsequently granted, and the Veteran appealed the initial rating assigned.  In cases such as this, where service connection has been granted and an initial disability rating and effective date has been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. 
§ 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  The Veteran bears the burden of demonstrating any prejudice from defective (or nonexistent) notice with respect to the downstream elements.  Goodwin v. Peake, 22 Vet. App. 128, 137 (2008).  That burden has not been met in this case, as neither the Veteran nor his representative has alleged such prejudice. 

VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012).  All identified and available treatment records have been secured.  As the Board will discuss in detail in the analysis below, the Veteran was provided with multiple VA examinations during the appeal period.  A review of the  VA examination reports reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate  evaluations of the Veteran, rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record, and provided sufficient information to evaluate the disabilities.  

As to the hearing loss claim, the Board recognizes that in Martinak v. Nicholson, 21 Vet. App. 447 (2007) the United States Court of Appeals for Veterans Claims (Court) noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities.  See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2012).  The Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow deficient, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination.  In this case, the Board observes that the VA examiners who conducted the January 2009 and July 2012 examinations addressed the functional effects of the Veteran's hearing loss disability, as will be discussed in detail below.  Thus, as contemplated by Martinak and directed by 38 C.F.R. § 4.10, the VA examiners discussed the functional effects of the Veteran's hearing problems in the most recent examination reports. 

Additionally, the Veteran has not stated nor is there evidence indicating that there has been a material change in the severity of his hearing loss disability, hypertension, and/or GERD since he was last examined in July 2012.  See 38 C.F.R. § 3.327(a) (2012).  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted.  See VAOPGCPREC 11-95 (April 7, 1995).  

The Board concludes that the examination reports of record are adequate for purposes of rendering a decision in the instant appeal.  See 38 CF.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Veteran and his representative have not contended otherwise.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met.  38 C.F.R. § 3.159(c) (4) (2012); Barr, 21 Vet. App. at 312

The Board additionally observes that all appropriate due process concerns have been satisfied.  See 38 C.F.R. § 3.103 (2012).  The Veteran has declined the opportunity to provide testimony before a Veterans Law Judge.  Therefore, the duties to notify and assist have been met.   

Increased Ratings

Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  Each disability must be viewed in relation to its history, with an emphasis on the limitation of activity imposed by the disabling condition.  Medical reports must be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7 (2012).

The provisions of 38 C.F.R. § 4.31 indicate that in every instance where the minimum schedular evaluation requires residuals and the schedule does not provide for a zero percent evaluation, a zero percent evaluation will be assigned when the required symptomatology is not shown.  38 C.F.R. § 4.31 (2012).  

While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings.  See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.  

Cervical Spine Disability 

The Veteran essentially contends that his cervical spine strain with herniated disk at C3-4 with left radiculopathy is more disabling than contemplated by the current 10 percent disability evaluation. 

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.  It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements.  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant 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.  A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like.  38 C.F.R. § 4.40 (2012).

Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14 (2011).  The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, however, should only be considered in conjunction with the diagnostic codes predicated on limitation of motion.  Johnson v. Brown, 9 Vet. App. 7 (1996).

The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention 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 (2012).

With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes.  Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight- bearing are related considerations.  38 C.F.R. § 4.45 (2011).  For the purpose of rating disability from arthritis, the spine is considered a major joint.  38 C.F.R. § 4.45 (2012).

Arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint.  When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected.  38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2012).  Traumatic arthritis is rated using Diagnostic Code 5010, which directs that the evaluation of arthritis be conducted under Diagnostic Code 5003, which states 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.  38 C.F.R. § 4.71a, Diagnostic Code 5010 (2012).  When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion.  The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  Id.  In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating.  The above ratings are to be combined, not added under Diagnostic Code 5003.  38 C.F.R. § 4.71a, Diagnostic Code 5010, Note 1 (2012).  

The words slight, moderate, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just.  38 C.F.R. § 4.6 (2012).  It should also be noted that use of terminology such as severe by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6 (2012).

The General Rating Formula for Diseases and Injuries of the Spine, 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 as follows:

Unfavorable ankylosis of the entire spine (100 percent);

Unfavorable ankylosis of the entire thoracolumbar spine (50 percent);

Unfavorable ankylosis of the entire cervical spine, or forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine (40 percent);

For forward flexion of the cervical spine to 15 degrees or less, or favorable ankylosis of the entire cervical spine (30 percent);

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 (20 percent);

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 (10 percent).

38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Code 5242 (degenerative arthritis of the spine) (2012).

Ankylosis is the immobility and consolidation of a joint due to disease, injury or surgical procedure.  See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)).

The spine codes permit evaluation under either 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 results in the higher evaluation when all disabilities are combined.  38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012).

The following ratings apply to intervertebral disc syndrome based on incapacitating episodes: 

Incapacitating episodes having a total duration of at least 6 weeks during the past 12 months (60 percent);

Incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (40 percent);

Incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months (20 percent);

Incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months (10 percent). 
      
      38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). 

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, Diagnostic Code 5243, Note 1 (2012). 

When evaluating diseases and injuries of the spine, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2012).

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.  The normal combined range of motion range of motion of the cervical spine is 340 degrees.  The normal ranges of motions 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.  38 C.F.R. § 4.71a , General Rating Formula for Diseases and Injuries of the Spine, Note (2).  See also 38 C.F.R. § 4.71a, Plate V (2012). 

In this case, the Board finds that a higher evaluation is not warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, which assigns a 20 percent evaluation for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months.  38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012).  There is no evidence in the record of intervertebral disc syndrome or of any incapacitating episodes.  In fact, during the April 2009 VA examination, the Veteran denied any incapacitating episodes.  Also, the July 2012 VA examination report reflected that the Veteran did not have intervertebral disc syndrome.  Therefore, there is no evidence of intervertebral disc syndrome or any incapacitating episodes as contemplated by the rating criteria, and certainly none lasting at least two weeks.  See id.  

As the Veteran is not entitled to an increased rating based on incapacitating episodes, it is necessary to determine whether he is entitled to a higher rating based on his orthopedic and neurological manifestations.

Turning first to the orthopedic manifestations, the Board notes that for a 20 percent evaluation, the Veteran must demonstrate 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.  38 C.F.R. § 4.71a, Diagnostic Code 5242 (2012).  

The April 2009 VA examination report noted range of motion of the cervical spine was flexion to 35 degrees, extension to 40 degrees, left lateral flexion to 20 degrees, right lateral flexion to 35 degrees, left lateral rotation to 40 degrees, and right lateral rotation to 60 degrees for a total combined range of motion of 230 degrees.  There was end-range pain with left lateral flexion and left lateral rotation.  The examiner noted that the Veteran's spine was symmetrical, he had a normal posture and gait, and there were no fixed deformities.  Subsequently on VA examination in July 2012, the Veteran demonstrated forward flexion to 45 degrees or greater with pain starting at 45 degrees or greater, extension to 45 degrees or greater with pain starting at 45 degrees or greater, bilateral lateral flexion to 40 degrees with pain starting at 40 degrees, and bilateral lateral rotation to 70 degrees with pain starting at 70 degrees for a total combined range of motion of 310 degrees.  Additionally, the examiner observed that the Veteran did not have guarding or muscle spasm. 

Based on the evidence, the Board finds that a higher evaluation is not warranted for the Veteran's orthopedic manifestations.  Although the Veteran had some loss of flexion in April 2009, such loss was not sufficient to warrant a higher rating (i.e., less than 30 degrees).  Most recently, he demonstrated full flexion.  Additionally, his combined range of motion has consistently exceeded 170 degrees.  Furthermore, the evidence specifically reflected that there was no muscle spasm or guarding, and the Veteran had a normal spine and gait (i.e., no showing of abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis).  Therefore, the criteria for a higher 20 percent evaluation have not been met.  See 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2012). 

Consideration has also been given to the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012).  Both the April 2009 and July 2012 VA reports showed that upon repetitive use, there was no pain, fatigue, weakness, lack of endurance, or incoordination of the cervical spine.  Additionally, there was no additional loss of range of motion after repetitive motion.  The July 2012 VA examiner also noted that there was no functional loss/impairment of the cervical spine.  Therefore, the Board concludes that an evaluation in excess of 10 percent for the Veteran's cervical spine disability is not warranted. 

As to whether a separate rating is warranted for neurological manifestations, the Board notes that in rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances.  38 C.F.R. § 4.120 (2012).  Under 38 C.F.R. § 4.124a , disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function.  With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves.  The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 

When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree.  In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis.  The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis.  38 C.F.R. § 4.123 (2012). 

For impairments related to the upper radicular group (fifth and sixth cervical), where paralysis is complete, all shoulder and elbow movements are lost or severely affected while hand and wrist movement are not affected, a 70 percent rating is warranted for the major arm and a 60 percent rating is warranted for the minor arm. Severe incomplete paralysis with warrants a 50 percent disability rating for the major arm and a 40 percent disability rating for the minor arm.  For moderate incomplete paralysis, a 40 percent disability rating for the major arm and a 30 percent disability rating for the minor arm are warranted.  A 20 percent rating is warranted for mild incomplete paralysis of either arm.  38 C.F.R. § 4.124a , Diagnostic Code 8510 (2012). 

The April 2009 VA examination report reflects that sensory evaluation demonstrated intact bilateral upper extremities; motor evaluation showed that muscle strength was at level three or four; and reflexes were symmetrical.  These findings reflect a normal neurological examination.

On VA examination in July 2012, the Veteran complained of mild decrease in sensation in the right fourth and fifth fingers which he reported started following his right elbow injury.  He denied pain, tingling, and numbness radiating from his neck.  On evaluation, the examiner noted that the Veteran did not have localized tenderness or pain to palpation for joints/soft tissue of the cervical spine.  Also, muscle strength was normal for bilateral elbow flexion and extension, bilateral wrist flexion and extension, and bilateral finger flexion and abduction.  There was no muscle atrophy.  Reflex evaluation showed that deep tendon reflexes were normal in the biceps, triceps, and brachioradialis; and sensory evaluation demonstrated that sensation to light touch (dermatones) was normal in the bilateral shoulder area, bilateral inner/outer forearm, and bilateral hand/fingers.  The examiner found that there was no radicular pain or other signs/symptoms due to radiculopathy.  Additionally, the examiner indicated that there were no other neurological abnormalities related to a cervical spine condition.  

The Veteran's symptoms of decreased sensation in his right fingers do not appear to be related to the cervical spine disability.  Rather, the record shows that those symptoms have already been accounted for and are related to his ulnar nerve neuropathy of the right hand and arm, which is already service-connected.  

Although in a June 2010 letter,  L.W.L., M.D. characterized the Veteran's disability as cervical radiculitis, there is no indication in the record of any neurological disability nor does examination by this physician demonstrate neurological deficit.  Notably, the Veteran has not complained of any other neurological symptoms.  Indeed, there have been no objective neurological symptoms related to his cervical spine disability to warrant a separate evaluation.  Physical examination has consistently demonstrated no neurological impairment or sensory deficits.  Additionally, no muscle atrophy was present and muscle strength was normal in the upper extremities.  The Veteran is, thus, not entitled to a separate rating based upon any neurologic residuals of his cervical spine disability; there are no independently ratable neurologic residuals demonstrated in the clinical data of record. 

Based upon the guidance of the Court in Fenderson, the Board has considered whether a staged rating is appropriate.  However, in the present case, the Veteran's symptoms remained constant throughout the course of the period on appeal, and as such staged ratings are not warranted. 

As the preponderance of the evidence is against the claim for an increased rating, the benefit-of-the-doubt rule does not apply, and the claim must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Hearing Loss Disability

The Veteran essentially contends that his bilateral hearing loss disability is more disabling than contemplated by the current non-compensable (zero percent) evaluation.  

Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second.  The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness.  VA audiometric examinations are conducted using a controlled speech discrimination test (Maryland CNC) together with the results of a puretone audiometry test.  The vertical lines in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test.  The horizontal columns in Table VI represent nine categories of decibel (dB) loss based on the pure tone audiometry test.  The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone dB loss. 

The percentage disability evaluation is then found from Table VII (in 38 C.F.R. 
§ 4.85), by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity.  For example, if the better ear has a numeric designation Level of "V" and the poorer ear has a numeric designation Level of "VII," the percentage evaluation is 30 percent.  38 C.F.R. § 4.85 (2012). 

The provisions of 38 C.F.R. § 4.86(a) provide that 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.  The provisions of 38 C.F.R. § 4.86(b) provide that when the puretone threshold is 30 dB or less at 1,000 hertz, and 70 dB 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. 

The relevant medical evidence of record includes VA examination reports and treatment records. 

A December 2008 VA treatment records noted the following pure tone thresholds, in decibels:



HERTZ


1000
2000
3000
4000
Avg.
RIGHT
35
50
75
75
59
LEFT
40
70
85
85
70

Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 80 percent in the left ear.  The hearing impairment levels correspond to Level II in the right ear and Level IV in the left ear under Table VI.  Intersecting Levels II and IV under Table VII shows a non-compensable rating.  The Board has also considered the provisions of 38 C.F.R. § 4.86 governing exceptional patterns of hearing impairment.  However, since the audiological report fails to demonstrate that each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) in either ear is 55 decibels or more, or that pure tone threshold is 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz in either ear, evaluation for exceptional patterns of hearing impairment is not warranted.  See 38 C.F.R. § 4.86 (a), (b) (2012).  

A January 2009 VA audiological examination report noted the following pure tone thresholds, in decibels:



HERTZ


1000
2000
3000
4000
Avg.
RIGHT
35
45
70
70
55
LEFT
40
70
85
80
69

 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 84 percent in the left ear.  The hearing impairment levels correspond to Level I in the right ear and Level III in the left ear under Table VI.  Intersecting Levels I and III under Table VII shows a non-compensable rating.  As to the test results in January 2009, an exceptional pattern of hearing impairment has not been shown.  See 38 C.F.R. § 4.86 (a), (b) (2012).  

A July 2012 VA examination report indicated the following pure tone thresholds (air conduction), in decibels:



HERTZ


1000
2000
3000
4000
Avg.
RIGHT
40
50
75
70
59
LEFT
45
80
90
85
75

Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 88 percent in the left ear.  The hearing impairment levels correspond to Level II in the right ear and Level III in the left ear under Table VI.  Intersecting Levels II and III under Table VII shows a non-compensable rating.  Additionally, an exceptional pattern of hearing impairment has not been shown.  See 38 C.F.R. § 4.86 (a), (b) (2012).  

The July 2012 examination report also showed the following pure tone thresholds (bone conduction), in decibels:



HERTZ


1000
2000
3000
4000
Avg.
RIGHT
30
45
65
65
51
LEFT
40
75
80
80
69

Speech audiometry revealed speech recognition ability of 88 and 92 percent in the right ear, and 84 and 88 percent in the left ear.  The hearing impairment levels correspond to Levels II (at 88 percent speech discrimination) and I (at 92 percent speech recognition) in the right ear, and Level III (at 84 and 88 percent speech recognition) in the left ear under Table VI.  Intersecting Levels II and III, and Levels I and III under Table VII shows a non-compensable rating.  Additionally, an exceptional pattern of hearing impairment has not been shown.  See 38 C.F.R. § 4.86 (a), (b) (2012).  

In short, throughout the appeal, the Veteran's hearing loss disability has remained at a non-compensable level pursuant to VA regulations.      

It is important to note that the results of the VA audiometric testing do not signify the absence of a significant disability associated with the Veteran's hearing loss disability.  However, the degree to which this disability affects the average impairment of earnings, according to the Rating Schedule, results in a noncompensable rating.  See Id.; 38 U.S.C.A. § 1155 (West 2002).  Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  As such, an evaluation in excess of the current disability evaluation is not warranted. 

The Board notes that the Veteran's representative has argued that the July 2012 examination report shows two sets of results which demonstrate that the Veteran meets the criteria for a compensable level.  The Board notes that the July 2012 VA examiner recorded results from both air and bone conduction tests, both of which were cited above.  However, as demonstrated above, neither test results showed that the Veteran met the criteria for a compensable evaluation.  

Additionally, the Veteran has asserted that when he does not wear his hearing aids (e.g., sleeping at night) that the effect of his hearing loss is more disabling.  In this regard, the Board finds that the medical evidence does not support the assignment of a higher rating for bilateral hearing loss.  To the extent that his hearing is significantly impaired, the fact that the Veteran's hearing acuity is less than optimal does not by itself establish entitlement to a higher disability rating.  To the contrary, it is clear from the Rating Schedule that a higher rating can be awarded only when loss of hearing has reached a specified measurable level.  While sympathetic to the Veteran's complaints, the Board notes that entitlement to a compensable evaluation has not been demonstrated in the present case.

Based upon the guidance of the Court in Hart v. Mansfield, 21 Vet. App. 505   (2007), the Board has considered whether a staged rating is appropriate.  However, the Veteran's symptoms do not warrant staged ratings as his disability has never been compensably disabling.   

As the preponderance of the evidence is against the claim for an increased rating, the benefit-of-the-doubt rule does not apply, and the claim must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Hypertension 

The Veteran essentially contends that his hypertension is more disabling than contemplated by the current non-compensable (zero percent) evaluation. 

The Veteran's disability has been evaluated under Diagnostic Code 7101 [hypertensive vascular disease (hypertension and isolated systolic hypertension)] , which provides for a 60 percent rating for diastolic pressure predominantly 130 or more and a 40 percent disability rating for diastolic pressure is predominantly 120 or more.  A 20 percent disability rating is warranted for diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more.  A 10 percent disability rating is warranted for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control.  38 C.F.R. § 4.104, Diagnostic Code 7101 (2012).  

Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days.  For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm.  38 C.F.R. § 4.104, Diagnostic Code 7101 (2012).  

The relevant evidence includes a December 2008 VA treatment showing a blood pressure reading of 140/81.  Additionally, on VA examination in January 2009, the following blood pressure readings were noted:  130/81, 147/88, and 146/89.  It was noted that the Veteran used Prinzide.  The July 2012 VA examination report showed that the Veteran took continuous medication (Prinzide) for his hypertension and that he did not have a history of diastolic blood pressure readings predominantly 100 or more.  The following blood pressure readings were record at that time:  124/76, 128/76, and 135/81.  

Based on review of the evidence, the Board notes that the criteria for a compensable evaluation for hypertension have not been met.  The Veteran has not demonstrated diastolic pressure predominantly 100 or more, systolic pressure predominantly 160 or more.  See supra 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012).  In addition, there is no dispute that the Veteran has required continuous medical for control of his hypertension; however, he has not demonstrated diastolic pressure predominantly 100 or more.  See id.  Therefore, a compensable evaluation for hypertension is not warranted for any time during the appeal period.  See Hart, supra. 

As the preponderance of the evidence is against the claim for an increased rating, the benefit-of-the-doubt rule does not apply, and the claim must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49  (1990).

GERD

The Veteran essentially contends that his GERD is more disabling than contemplated by the current non-compensable (zero percent) evaluation. 

The Veteran's disability has been rated under Diagnostic Codes 7399-7346.  His specific diagnosis is not listed in the Rating Schedule.  Consequently, the RO assigned Diagnostic Code 7399 pursuant to 38 C.F.R. § 4.27 which provides that unlisted disabilities requiring rating by analogy will be coded first by the numbers of the most closely related body part and "99."  See 38 C.F.R. § 4.20 (2012).  The RO determined that the most closely analogous diagnostic code is 38 C.F.R. 4.114, Diagnostic Code 7346 for hiatal hernia.  Based on the medical evidence discussed below, the Board finds that the Veteran has been appropriately rated under Diagnostic Code 7346.  See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (noting that the assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case").  The Veteran has not suggested that other diagnostic codes be applied.

Under Diagnostic Code 7346, a 10 percent rating is warranted when there is a hiatal hernia with two or more of the symptoms for the 30 percent evaluation of less severity.  A 30 percent disability evaluation is contemplated for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.  38 C.F.R. § 4.114, Diagnostic Code 7346 (2012). 

On VA examination in January 2009, the Veteran denied nausea, vomiting, hematemesis or melena, diarrhea or constipation, peritoneal adhesion, postgastrectomy syndromes, and periods of incapacitation due to stomach or duodenal disease.  Additionally, there was no history of hospitalization, surgery, or trauma; and there was no effect on his occupational function and activities of daily living.   His symptoms included substernal pyrosis only when he forgot to take his medication.  He took one tablet of over-the-counter Prilosec daily to treat his reflux.  On evaluation, the examiner indicated that the Veteran was well-developed, well-nourished, and in no acute distress.  Also, his weight was stable, and there was no sign of anemia or tenderness.  A diagnosis of intermittent hyperacidity, claimed as mild esophageal reflux disease, was noted.  

A November 2010 letter from P.M., M.D. noted that he had been treating the Veteran for several years and that despite treatment, the Veteran continued to have episodes of regurgitation and esophageal dysphagia. 

The July 2012 VA examination report reflected that he Veteran took Prilosec 20 mg daily and that he was symptom-free as long as took his medication.  He did not have signs or symptoms due to any esophageal conditions, esophageal stricture, spasm of esophagus, an acquired diverticulum of the esophagus, or related scars; or pertinent physical findings or complications related to GERD. 

Based on the evidence, the Board finds that a compensable evaluation is not warranted for the Veteran's GERD.  Of note, the January 2009 examination report showed that pyrosis only manifested when the Veteran forgot to take his medication.  Additionally, the Veteran's private clinician indicated that the Veteran experienced episodes of regurgitation and dysphagia.  However, there is no indication that these symptoms were persistently recurrent and/or accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.  Significantly, both VA examination reports, conducted before and after the private clinician submitted his letter, showed that the Veteran was essentially symptom-free, but for the infrequent occasion when he forgets to take this daily medication.  Therefore, a higher evaluation is not warranted.  

Based upon the guidance of the Court in Hart v. Mansfield, 21 Vet. App. 505   (2007), the Board has considered whether a staged rating is appropriate.  However, in the present case, the Veteran's symptoms remained constant throughout the course of the period on appeal and as such staged ratings are not warranted. 

As the preponderance of the evidence is against the claim for an increased rating, the benefit-of-the-doubt rule does not apply, and the claim must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Other Considerations

In making this decision, the Board must fully consider the lay assertions of record.  In this regard, a layperson is competent to report on his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (noting that a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. 

Competency of evidence differs, however, from the weight and credibility assigned to evidence.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination that addresses the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify").  In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498 (1995).

The Board has not overlooked the Veteran's statements with regard to the severity of his disabilities.  The Veteran is competent to report on factual matters of which he had firsthand knowledge; and the Board finds that the Veteran's reports concerning symptomatology have been credible.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  The Board notes, with respect to the Rating Schedule, where the criteria set forth therein require medical expertise which the Veteran has not been shown to have, the objective medical findings and opinions provided by the Veteran's VA examination reports and treatment records have been accorded greater probative weight.  Furthermore, evaluations of spine disabilities, hearing loss, hypertension, and GERD are predominately based on clinical findings taken by medical measurements.  

The Board has also considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis.  Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).

According to the regulation, 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.  See 38 C.F.R. § 3.321(b)(1) (2012).  An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards.  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 Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran'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, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected disabilities is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's various disabilities with the established criteria shows that the rating criteria reasonably describes the Veteran's disability levels and symptomatology.  

Specifically as to hearing loss disability, the Veteran indicated that he could not hear fire alarms, missed what his wife said, could not hear certain noises such as birds, could not understand dialog, and could not hear in restaurants because of background noise.  The Board notes that the decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability.  In support of this finding, the Board points to the regulatory history of 38 C.F.R. §§ 4.85 and 4.86.  In this regard, the rating criteria for hearing loss were last revised, effective June 10, 1999.  See 64 Fed. Reg. 25206 (May 11, 1999).  In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a Veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids.  VHA had found through clinical studies of veterans with hearing loss that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment.  The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA.  The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting.  59 Fed. Reg. 17295 (April 12, 1994).  Accordingly, the Board finds that functional impairment due to hearing loss that is compounded by background or environmental noise is a disability picture that is considered in the current schedular rating criteria.

Therefore, the Veteran's struggle to comprehend verbal conversations and other noises is a factor contemplated in the regulations and rating criteria as defined.  Accordingly, the Board determines that the Veteran's complaints of hearing difficulty have been considered under the numerical criteria set forth in the rating schedule. 

As to the cervical spine disability, the Veteran's complaints of pain and any limitation of range of motion are specifically contemplated in the criteria for  evaluating spine disabilities, and they practicably represent the average impairment in earning capacity resulting from the Veteran's service-connected disability.  See 38 C.F.R. § 4.1 (2012).  

As to hypertension and GERD, the Veteran has essentially been symptom-free as long as he takes his medications.  However, any associated factors/symptoms he has experienced as a result of his disabilities (i.e., requiring continuous medication for management of hypertension, and having occasional pyrosis if he forgets to take medication to manage his GERD) are specifically included in the respective rating criteria.  Id. 

In short, the rating criteria reasonably describe the Veteran's disability levels and symptomatology.  The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted.

Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009).  In Rice, the Court held that a claim for a total rating based on unemployability due to service- connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating.  In this case, the Veteran has not argued, and the record does not otherwise reflect, that his disabilities render him totally unemployable.  Accordingly, the Board concludes that a claim for TDIU has not been raised.










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ORDER

Entitlement to an initial evaluation in excess of 10 percent for cervical spine strain with herniated disk at C3-4 with left radiculopathy is denied.

Entitlement to a compensable evaluation for a bilateral hearing loss disability is denied. 

Entitlement to a compensable evaluation for hypertension is denied. 

Entitlement to a compensable evaluation for GERD is denied.


REMAND

After having carefully considered the matter and for reasons expressed immediately below, the Board believes that the issue of service connection for a left shoulder disability must be remanded for further evidentiary development.

The Veteran essentially contends that he has a left shoulder disability secondary to his service-connected cervical spine disability.  In this regard, the April 2009 VA spine examiner indicated that the Veteran had a trapezius strain, which was synonymous with cervical strain on the left side, and there was no left shoulder joint disability related to service.  The evidence of record also includes a June 2010 letter from L.W.L., M.D. who stated that the Veteran's left shoulder pain was related to his cervical radiculitis.  

The Board finds that the current evidence of record is inadequate to determine the nature and etiology of any current left shoulder disability.  Although the April 2009 VA examiner mentioned the left shoulder, the examination report is unclear as to whether a detailed evaluation of the left shoulder was conducted.  Additionally, there is no evidence of record addressing the current nature and etiology of the Veteran's left shoulder disability, to specifically include whether any current disability is separate and distinct and/or secondary to service-connected cervical spine disability.  On remand, the Veteran must be afforded such an examination.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that when VA undertakes to provide a VA examination, it must ensure that the examination is adequate); see also Allen v. Brown, 7 Vet. App. 439, 446 (1995) (holding that if aggravation of a veteran's nonservice-connected disability is proximately due to or the result of a service-connected disease or injury, it too shall be service connected for that degree of aggravation; 38 C.F.R. § 3.310 (2012).  (The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability).

Accordingly, the case is REMANDED for the following actions:

1. Schedule the Veteran for an examination to determine the nature and etiology of any current left shoulder disability.  The claims file and a copy of this remand must be made available to and be reviewed by the examiner in conjunction with the examination.  The examination report must indicate that the claims file was reviewed in conjunction with the examination. 

The examiner should determine the diagnosis of any current left shoulder disability, and indicate if the disability is separate and distant from the cervical spine disability.  

The examiner should also provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) any current left shoulder disability was either (1) caused by or (2) is aggravated by the Veteran's service-connected cervical spine disability.   

If the examiner determines that a left shoulder  disability is aggravated by the service-connected cervical spine disability, the examiner should report the baseline level of severity of the nonservice-connected left shoulder disability prior to the onset of aggravation.  If some of the increase in severity of the nonservice-connected disability is due to the natural progress of the disease, the examiner should indicate the degree of such increase in severity due to the natural progression of the disease.

The examiner should also determine whether it is at least as likely as not (a 50 percent probability or greater) that any current left shoulder disability is related to service. 

Any opinion provided must include an explanation of the basis for the opinion.  

If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.  See Jones v. Shinseki, 23 Vet. App. 382 (2010).  The report must be typed.

2. Thereafter, readjudicate the Veteran's claim.   If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case.

The Veteran 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. 2012).




______________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs