Citation Nr: 1315898 Decision Date: 05/15/13 Archive Date: 05/15/13 DOCKET NO. 07-35 783 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent prior to November 10, 2008, for bilateral hearing loss. 2. Entitlement to an evaluation in excess of 40 percent since November 10, 2008, for bilateral hearing loss. 3. Entitlement to an evaluation in excess of 10 percent prior to March 15, 2007, for lumbar degenerative disc disease. 4. Entitlement to an evaluation in excess of 20 percent since March 15, 2007, for lumbar degenerative disc disease. 5. Entitlement to an evaluation in excess of 10 percent for avascular necrosis of the right hip. 6. Entitlement to an evaluation in excess of 10 percent for avascular necrosis of the left hip. 7. Entitlement to an evaluation in excess of 10 percent as of June 5, 2009, for sciatic nerve impingement of the right leg. 8. Entitlement to an evaluation in excess of 10 percent since June 5, 2009, for sciatic nerve impingement of the right leg. 9. Entitlement to an evaluation in excess of 10 percent as of June 5, 2009, for sciatic nerve impingement of the left leg. 10. Entitlement to an evaluation in excess of 10 percent since June 5, 2009, for sciatic nerve impingement of the left leg. 11. Entitlement to an evaluation in excess of 10 percent for right knee degenerative joint disease. 12. Entitlement to an evaluation in excess of 10 percent for left knee degenerative changes. 13. Entitlement to an evaluation in excess of 10 percent for right ankle degenerative changes. 14. Entitlement to an evaluation in excess of 10 percent for degenerative changes of the right metatarsalphalangeal joints. 15. Entitlement to an evaluation in excess of 10 percent for degenerative changes of the left metatarsalphalangeal joints. 16. Entitlement to service connection for restless leg syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, spouse, son, and daughter ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from March 1985 to August 1990. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from rating decisions dated in December 2005, May 2007, and October 2007 of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, and Cleveland Ohio. In September 2012, the Veteran testified at a Travel Board hearing. A transcript of that hearing is of record. The issues of entitlement to an evaluation in excess of 40 percent since November 10, 2008, for bilateral hearing loss; entitlement to an evaluation in excess of 20 percent since March 15, 2007, for lumbar degenerative disc disease; and entitlement to evaluations in excess of 10 percent since June 5, 2009, for sciatic nerve impingement of the right and left legs are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In September 2012, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he wished to withdraw his appeal to the issues of entitlement to service connection for restless leg syndrome, and entitlement to increased evaluations for degenerative changes of the right ankle, right metatarsalphalangeal joints, and for left metatarsalphalangeal joints. 2. Prior to November 10, 2008, the Veteran's bilateral hearing loss was not manifested by hearing worse than levels V and VI. 3. Effective November 10, 2008, the Veteran's bilateral hearing loss equated to a Level VII loss in the right ear, and a Level VIII loss in the left ear. 4. Prior to March 15, 2007, the Veteran's lumbar degenerative disc disease was not manifested by forward thoracolumbar flexion to 60 degrees or less; a combined range of thoracolumbar motion less than 120 degrees; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour; ankylosis; or incapacitating episodes having a total duration of at least 2 weeks during a 12-month period. 5. Effective March 15, 2007, the Veteran's lumbar degenerative disc disease was manifested by forward thoracolumbar flexion to 60 degrees, but not less than 60 degrees, and favorable ankylosis of the entire thoracolumbar spine is not shown. 6. The Veteran's right hip avascular necrosis has not been manifested by flexion limited to 30 degrees or less, abduction with motion lost beyond 10 degrees, or malunion, fracture, or nonunion of the femur. 7. The Veteran's left hip avascular necrosis has not been manifested by flexion limited to 30 degrees or less, abduction with motion lost beyond 10 degrees, or malunion, fracture, or nonunion of the femur. 8. As of June 5, 2009, the Veteran's right leg sciatic nerve impingement was not manifested by moderate incomplete paralysis. 9. As of June 5, 2009, the Veteran's left leg sciatic nerve impingement was not manifested by moderate incomplete paralysis or complete paralysis. 10 The Veteran's right knee disability has not been manifested by flexion limited to 30 degrees, or extension limited to 15 degrees. 11. The Veteran's left knee disability has not been manifested by flexion limited to 30 degrees, or extension limited to 15 degrees. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a Substantive Appeal by the Veteran as to the issues of entitlement to service connection for restless leg syndrome, and entitlement to increased ratings for degenerative changes of the right ankle, right metatarsalphalangeal joints, and left metatarsalphalangeal joints have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. Prior to November 10, 2008, the criteria for an evaluation in excess of 20 percent for a bilateral hearing loss were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2012). 3. Effective November 10, 2008, the criteria for a 40 percent evaluation for a bilateral hearing loss were met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.85, 4.86, Diagnostic Code 6100. 4. Prior to March 15, 2007, the criteria for an evaluation in excess of 10 percent for lumbar degenerative disc disease were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5242 (2012). 5. Effective March 15, 2007, the criteria for a 20 percent evaluation for lumbar degenerative disc disease were met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5242. 6. During the entire appeal period, the criteria for an evaluation in excess of 10 percent for avascular necrosis of the right hip were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5255 (2012). 7. During the entire appeal period, the criteria for an evaluation in excess of 10 percent for avascular necrosis of the left hip were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5255 (2012). 8. As of June 5, 2009, the criteria for an evaluation in excess of 10 percent for right leg sciatic nerve impairment were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8520 (2012). 9. As of June 5, 2009, the criteria for an evaluation in excess of 10 percent for left leg sciatic nerve impairment were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8520 (2012). 10. The criteria for an evaluation in excess of 10 percent for right knee degenerative joint disease have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5261 (2012). 11. The criteria for an evaluation in excess of 10 percent for left knee degenerative changes have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5261 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawn Appeal Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. At his September 2012 hearing, the Veteran withdrew his appeal to the issues of entitlement to service connection for restless leg syndrome, and entitlement to increased ratings for degenerative changes of the right ankle, right metatarsalphalangeal joints, and left metatarsalphalangeal joints. Hence, there remain no allegations of errors of fact or law for appellate consideration with respect to those issues. Accordingly, the Board does not have jurisdiction to review the appeal with respect to those issues. The appeal with respect to those issues is, therefore, dismissed. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) redefined VA's duty to notify and assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). In May 2005 and March 2009 letters, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for increased ratings, to include what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including service treatment records, VA examination reports, and VA treatment records. Moreover, during the September 2012 Board hearing, the undersigned explained the issues on appeal and asked question designed to elicit evidence that may have been overlooked with regard to the claims on appeal. VA's duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The Veteran was accorded VA examinations in June 2005, March 2007, May 2007, May 2009, and June 2009. 38 C.F.R. § 3.159(c)(4). The examiners addressed the severity of the Veteran's service-connected disabilities in conjunction with a review of the claims file and physical examination of and interview with the appellant. Save for the basis for the remand discussed below there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disorders since he was last examined. 38 C.F.R. § 3.327(a). 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. VAOPGCPREC 11-95. These VA examination reports are thorough. The examinations in this case are adequate upon which to base a decision. As VA has fulfilled all duties under the Veterans Claims Assistance Act of 2000, the Board will address the merits of the claims. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, as here, the Veteran is requesting a higher rating for already established service-connected disabilities, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the 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 on 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 visible behavior of the claimant undertaking the motion. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant on motion. Disability of the musculoskeletal system is the inability to perform normal working movement with normal excursion, strength, speed, coordination, and endurance, and that weakness is as important as limitation of motion, and that a part that becomes disabled on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, through atrophy, for example. The provisions of 38 C.F.R. §§ 4.45 and 4.59 also contemplate inquiry into whether there is limitation of motion, weakness, excess fatigability, incoordination, and impaired ability to execute skilled movements smoothly, and pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing, and weight-bearing are also related considerations. The Court has held that diagnostic codes predicated on limitation of motion require consideration of a higher rating based on functional loss due to pain on use or due to flare-ups. 38 C.F.R. §§ 4.40, 4.45, 4.59; Johnson v. Brown, 9 Vet. App. 7 (1997); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Hearing Loss The Veteran's bilateral hearing loss was evaluated by the RO as 20 percent disabling prior to June 5, 2009, and has been evaluated as 30 percent disabling since June 5, 2009, pursuant to 38 C.F.R. § 4.87, Diagnostic Codes 6100 for hearing impairment. Hearing loss ratings range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with average hearing thresholds determined by pure tone audiometric testing at frequencies of 1000, 2000, 3000 and 4000 cycles per second. "Pure tone threshold average" is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz divided by four. This average is used in all cases (including those in §4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85, Diagnostic Code 6100. The rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. 38 C.F.R. § 4.85. The horizontal rows 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 vertical columns in Table VI represent nine categories of decibel loss based on the pure tone audiometric test. The Roman numeral designation is located at the point where the percentage of speech discrimination and pure tone threshold average intersect. See 38 C.F.R. §§ 4.85, 4.87. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. See 38 C.F.R. § 4.85. On VA audiometric examination in June 2005, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 55 65 60 65 LEFT 55 75 75 75 The pure tone threshold average for the right ear was 61.25 and for the left ear was 70.0. Speech audiometric study revealed speech recognition ability of 88 percent in the right ear and 76 percent in the left ear. Using Table VI in 38 C.F.R. § 4.85, the Veteran received numeric designations of III for the right ear and IV for the left ear. Level III hearing in the better ear and Level IV hearing in the poorer ear equates to 10 percent evaluation. 38 C.F.R. § 4.85, Table VII. The Board has also considered the alternative rating scheme for exceptional patterns of hearing impairment and found it applicable here. When the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86(a) (2012). In this case, Using Table VIA in 38 C.F.R. § 4.85, the Veteran received numeric designations of IV for the right ear and VI for the left ear which do not equate to entitlement to a 30 percent evaluation. 38 C.F.R. § 4.85, Table VIIA. On VA audiometric examination in March 2007, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 55 70 60 70 LEFT 65 80 80 80 The pure tone threshold average for the right ear was 63.75 and for the left ear was 76.25. Speech audiometric revealed speech recognition ability of 88 percent in the right ear and 92 percent in the left ear. Using Table VI in 38 C.F.R. § 4.85, the Veteran received numeric designations of III for the right ear and II for the left ear. Level II hearing in the better ear and Level III hearing in the poorer ear equates to a noncompensable (zero percent) evaluation. 38 C.F.R. § 4.85, Table VII. Using Table VIA in 38 C.F.R. § 4.85, the Veteran received numeric designations of V for the right ear and VI for the left ear. Level V hearing in the better ear and Level VI hearing in the poorer ear equates to 20 percent evaluation. 38 C.F.R. § 4.85, Table VIIA. Private medical records indicate that the Veteran underwent implantation of a right-sided Vibrant Sound Bridge in September 2007 and a left-sided Vibrant Sound Bridge in March 2008. In May 2009, VA received copies of private audiological evaluations dated in January 2006, September 2007, October 2007, November 2007, December 2007, March 2008, September 2008, February 2009. Unfortunately, there is not enough data to determine the pure tone threshold averages in order to calculate the levels of hearing impairment for these examinations. As noted above, hearing loss ratings are measured by controlled speech discrimination tests in conjunction with average hearing thresholds determined by pure tone audiometric testing at frequencies of 1000, 2000, 3000 and 4000 cycles per second. In each one of the private tests, the average threshold could not be determined because at least one of the values for the required frequencies was missing. Significantly, a November 10, 2008 private medical evaluation was received by VA on May 29, 2009 which does provide all necessary thresholds. Assuming that the examination study used the required Maryland CNC word list, that study revealed pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 75 80 80 90 81.25 LEFT 65 85 95 100 86.25 Speech audiometric study revealed speech recognition ability of 65 percent in the right ear and of 65 percent in the left ear. These equate to a Level VII loss in the right ear, and a Level VIII in the left ear under both 38 C.F.R. § 4.85, Table VI and VIA. These findings equate to a 40 percent rating under 38 C.F.R. § 4.85 effective November 10, 2008. Neither the lay nor medical evidence reflects the functional equivalent of symptoms required for a higher evaluation. Accordingly, for the term prior to November 10, 2008, entitlement to an evaluation in excess of 20 percent, for bilateral hearing loss is not warranted. In light of the study conducted on November 10, 2008, however, entitlement to a 40 percent rating is assigned as of that date. Lumbar Spine The Veteran's lumbar degenerative disc disease was rated as 10 percent disabling prior to June 5, 2009, and as 20 percent disabling since June 5, 2009 pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5237. The rating criteria for diseases and injuries of the spine are contained in 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (for, respectively, vertebral fracture or dislocation; sacroiliac injury and weakness; lumbosacral or cervical strain; spinal stenosis; spondylolisthesis or segmental instability; ankylosing spondylitis; spinal fusion; degenerative arthritis of the spine; and intervertebral disc syndrome). In pertinent part, the General Rating Formula for Diseases and Injuries of the Spine provides that 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, the following apply: Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height warrants a 10 percent rating. Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis warrants a 20 percent rating. 38 C.F.R. § 4.71a. Note (1):Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2):(See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. With incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months, a 10 percent rating is warranted. With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months, a 20 percent rating is warranted. Note(1): An incapacitating episode is a defined as 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. In order for an increased evaluation to be warranted for lumbar degenerative disc disease prior to June 5, 2009, the evidence must show forward thoracolumbar flexion to 60 degrees or less; a combined range of thoracolumbar motion of 120 degrees less; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour; or incapacitating episodes having a total duration of at least 2 weeks during a 12-month period. Private medical records indicate that the Veteran underwent bilateral facet steroid injections in June 2003, January 2005, and April 2005. In June 2004, the Veteran reported experiencing moderate to good relief of pain. His gait was normal, and there was no paravertebral muscle spasm. In March 2005, the Veteran's gait was not antalgic and his lumbosacral spine elicited tenderness in the right lumbosacral region exacerbated by rotation and extension to the right. Lumbar flexion was full. At the VA examination in June 2005, the Veteran demonstrated flexion to 90 degrees and extension, lateral flexion, and rotation all to 30 degrees. Pain was noted on all endpoints. The Veteran's gait was within normal limits, muscle spasm was absent, there was no tenderness noted, and no complaints of radiating pain on movement. Thoracolumbar motion was not additionally limited by weakness, fatigue, lack of endurance or incoordination. A March 2007 lumbar MRI showed multilevel broad-based annular protrusions, most significant from the L3-4 to the L5-S1 levels with neural foraminal stenosis on the right at all these levels. There was no significant central canal stenosis. Multilevel bilateral facet hypertrophy most prominent from the L3-4 to the L5-S1 levels, contributing to the right-sided neural foramina stenosis at these levels. Multilevel degenerative disc disease, most pronounced from the L3-4 to the L5-S1 levels. Multilevel Schmorl nodes extending from the T12-L1 to the L3-4 levels. Grade 1 retrolisthesis of L5-S1. At a March 15, 2007, VA examination the Veteran demonstrated flexion to 75 degrees and extension, bilateral lateral flexion, and bilateral rotation to 15 degrees. Pain was noted on all endpoints. The Veteran's gait was within normal limits, muscle spasm was absent, but tenderness was noted. There was no evidence of radiating pain on movement, no ankylosis of the lumbar spine, and straight leg testing was negative. Inspection of the spine revealed normal head position with symmetry in appearance. There was symmetry of spinal motion with normal curvatures of the spine. Notably, thoracolumbar function was judged to be additionally limited by weakness, fatigue, and a lack of endurance, but not by incoordination. The examiner opined that these factors caused an additional 15 degree loss of motion. There were no signs of an intervertebral disc syndrome and permanent nerve root involvement. Private medical records dated in April 2007 showed that physical examination of the lumbar/lumbosacral spine revealed tenderness on palpation, muscle spasms, pain and abnormal spine motion. The lumbosacral spine, however, exhibited a normal appearance with no step deformity. Private medical records dated in February 2008, March 2008, July 2008, September 2008, January 2009, and February 2009 demonstrate lumbar flexion to 80 degrees and extension to 15 degrees. The Veteran's gait was stable. There is no evidence of record documenting that at any time during the appellate term addressed herein that the appellant's lumbar degenerative disc disease was manifested by physician ordered bed rest for a term consistent with a higher rating. Hence, an increased rating is not in order based on incapacitating episodes. Prior to the March 15, 2007 VA examination the manifestations of the appellant's lumbar degenerative disc disease did not approach the severity contemplated for a rating higher than 10 percent. As noted there was no competent evidence showing any incapacitating episodes manifested by physician ordered bed rest. Moreover, prior to March 15, 2007, forward flexion was consistently greater that 60 degrees, and the combined range of thoracolumbar motion was consistently greater than 120 degrees. Significantly, however, at the March 15, 2007 examination while forward flexion was limited to 75 degrees, the examiner also opined that weakness, fatigue, and a lack of endurance caused an additional 15 degree loss of motion, i.e., he found that flexion was limited to 60 degrees. Given that a 30 percent evaluation is warranted if forward thoracolumbar flexion does not exceed 60 degrees, the Board finds that after considering the doctrine of reasonable doubt and the examiner's finding of an additional loss due to weakness, fatigue, and a lack of endurance, that a 20 percent evaluation is in order as of March 15, 2007. To assign a 40 percent evaluation, however, requires evidence showing that forward thoracolumbar flexion be limited to 30 degrees or less, or that there be evidence of favorable ankylosis of the entire thoracolumbar spine. At no time during the appellate term addressed herein has the appellant's thoracolumbar motion been manifested by a limitation of forward flexion to 30 degrees or less, and certainly not by evidence of favorable ankylosis involving the entire thoracolumbar spine. Right and Left Hips Except for periods of temporary total evaluation from March 14 to June 30, 2006 for the right hip, and from April 25 to July 31, 2006 for the left hip, the Veteran's avascular necrosis of each hip has been rated as 10 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5255. Under Diagnostic Code 5255, a rating of 10 percent is warranted for malunion of the femur with slight knee or hip disability. A 20 percent disability rating is assigned for malunion of the femur with moderate knee or hip disability. 38 C.F.R. § 4.71a (2012). In pertinent part, disabilities of the hip and thigh may also be rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5251, 5252 or 5253 . In this respect, Diagnostic Code 5251 provides a maximum rating of 10 percent for limitation of extension of the thigh to 5 degrees. Diagnostic Code 5252 provides a 10 percent rating for limitation of flexion of the thigh to 45 degrees; and a 20 percent rating where flexion is limited to 30 degrees. Finally, Diagnostic Code 5253 provides a 10 percent evaluation when there is limitation of abduction of the thigh such that the legs cannot be crossed or there is limitation of rotation such that it is not possible to toe out more than 15 degrees. A 20 percent rating requires limitation of abduction with motion lost beyond 10 degrees. A full hip range of motion is defined as 0 to 125 degrees of hip flexion, and 0 to 45 degrees of hip abduction. See 38 C.F.R. § 4.71, Plate II (2012). In order for an increased evaluation to be warranted for the Veteran's service-connected hip disabilities, the evidence must show hip flexion limited to 30 degrees or less; or a limitation of hip abduction with motion lost beyond 10 degrees; or evidence of a malunion of the femur with moderate knee or hip disability. The Board has reviewed all the medical evidence pertaining to the Veteran's right and left hip avascular necrosis. Private medical records dated in March 2005 indicate that the Veteran underwent cord decompressions in the late 1980s or early 1990s for bilateral hips. An MRI was ordered which did not show any acute avascular necrosis or new activity. The femoral head was viable without any signs of recurrent avascular necrosis. At the VA examination in June 2005, both hips demonstrated flexion to 125 degrees, extension to 30 degrees, adduction to 25 degrees, abduction to 45 degrees, external rotation to 60 degrees, and internal rotation to 40 degrees. Pain was noted on all endpoints. The Veteran's gait and the general appearance of the hip joints were within normal limits. Although the examiner noted that the Veteran's hips were additionally limited by pain, he could not make a determination without resorting to speculation as to degree of additional limitation. X-rays of the hips revealed postoperative changes to the right femoral head, neck and intertrochantric area with no fracture, dislocation, or arthritic change. Private medical records indicate that a January 2006 physical examination revealed that the Veteran had decreased internal and external right hip rotation when compared to his left hip. At a May 2007 VA examination the Veteran demonstrated normal hip flexion bilaterally to 125 degrees, extension to 30 degrees, adduction to 25 degrees, abduction to 46 degrees, external rotation to 60 degrees, and internal rotation to 60 degrees with pain at the endpoints. The examiner found that joint function was not additionally limited to any degree by pain, fatigue, and lack of endurance after repetitive use. At a June 2009 VA examination the hip joints demonstrated flexion to 45 degrees bilaterally, extension to 5 degrees bilaterally, adduction to 10 degrees bilaterally, abduction to 10 degrees bilaterally, external rotation to 30 degrees bilaterally, and internal rotation to 10 degrees on the right and 20 degrees on the left. There was pain at all endpoints. Joint function was additionally limited due to pain, fatigue, weakness, and lack of endurance after repetitive use but found no additional limitation in degree of motion. The Veteran's manifestations of his service-connected right and left hip disabilities do not approach the severity required for a rating higher than 10 percent. As set forth above, to assign an evaluation in excess of 10 percent, the evidence must show flexion limited to 30 degrees or less; limitation of abduction with motion lost beyond 10 degrees; or malunion, fracture, or nonunion of the femur. None of these symptoms have been demonstrated. There is no evidence of a limitation of thigh motion in either hip joint to support the application of Diagnostic Codes 5251, 5252, or 5253, and no evidence of malunion or fracture of the femur to support the application of Diagnostic Code 5255. Even when taking into account the Veteran's complaints of pain, the Veteran's right and left hip disabilities do warrant an evaluation in excess of 10 percent. 38 C.F.R. §§ 4.40, 4.45, 4.71a. Although the June 2005 VA examiner noted that the Veteran's hips were additionally limited by pain he could not determine, without resorting to speculation, as to degree of any additional limitation of hip motion. The March 2007 and June 2009 VA examiners specifically noted that there was no additional limitation of hip motion due to functional limitations. Thus, the Veteran did not demonstrate additional limitation of motion which approximated flexion limited to 30 degrees or less; abduction with motion lost beyond 10 degrees; or malunion, fracture, or nonunion of the femur. Neither the lay nor medical evidence reflects the functional equivalent of symptoms required for a higher evaluation. Accordingly, entitlement to an evaluation in excess of 10 percent for manifestations of the Veteran's service-connected right and left hip disabilities is not warranted at any time during the appeal period. Right and Left Sciatic Nerve The Veteran's sciatic nerve impingement of the right and left legs have been evaluated as 10 percent disabling pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520 effective June 5, 2009. The current rating contemplates mild incomplete paralysis of the sciatic nerve. To warrant a higher evaluation the evidence must show moderate incomplete paralysis of the sciatic nerve. 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). Neuritis, cranial or peripheral, 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. 38 C.F.R. § 4.123 (2012). The maximum rating which may be assigned for neuritis not characterized by organic changes as noted above will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate, incomplete paralysis. 38 C.F.R. § 4.124 (2012). In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124(a). When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The ratings for peripheral nerves are for unilateral involvement; when bilateral, they are combined with application of the bilateral factor. Id. The use of terminology such as "mild," "moderate," and "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. 38 C.F.R. §§ 4.2, 4.6 (2012). Diagnostic Code 8520 of the Rating Schedule provides the rating criteria for paralysis of the sciatic nerve, and, therefore, neuritis (Diagnostic Code 8620) and neuralgia (Diagnostic Code 8720) of that nerve. Under Diagnostic Code 8520, disability ratings of 10 percent, and 20 percent are assigned for incomplete paralysis which is mild or moderate in degree, respectively. Id. At a June 5, 2009 VA examination the examiner found an L4 sensory deficit involving the thighs and front legs; an L5 sensory deficit involving the lateral legs, the dorsum of the feet, and the lateral feet areas; and an S1 sensory deficit involving the backs of the thighs, lateral leg areas, and lateral feet regions. Significantly, knee and ankle jerks were 2+ bilaterally. There was no evidence of bowel or bladder dysfunction. In light of these findings the Board finds that while the appellant has a some degree of sensory loss involving both lower extremities, as of June 5, 2009, that degree of loss did not rise to the level of moderate incomplete paralysis such as to warrant a 20 percent rating for either leg. Indeed, there was no evidence of any motor dysfunction, let alone incomplete paralysis. Accordingly, an increased evaluation is not warranted for either extremity as of June 15, 2009. Right and Left Knees The Veteran is service connected for right and left knee degenerative changes. He is not currently service connected for subluxation or instability in either joint. Each knee joint is currently evaluated as 10 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under 38 C.F.R. § 4.71a, Diagnostic Code 5003 which governs degenerative arthritis, limitation of motion of the affected joint is rated as limitation of motion for the affected joint unless limitation of motion is either non-compensable or not shown. Pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5260, which pertains to limitation of flexion of the knee, a 10 percent evaluation is assigned where flexion is limited to 45 degrees; and a 20 percent rating is assigned where flexion is limited to 30 degrees. Pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5261,which pertains to limitation of extension of the knee, a 10 percent evaluation is assigned for extension that is limited to 10 degrees, and a 20 percent evaluation is assigned for extension that is limited to 15 degrees. Where limitation of range of motion of a joint affected by arthritis is present but to a non-compensable level, a 10 percent evaluation is assigned. 38 C.F.R. 4.71a , Diagnostic Code 5003. Normal (full) range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II (2011). In order for an increased evaluation to be warranted for the Veteran's service-connected knee disabilities, the evidence must show either flexion limited to 30 degrees, or extension limited to 15 degrees. The Board has reviewed all the medical evidence pertaining to the Veteran's service-connected bilateral knee disability. At the VA examination in June 2005, examination of the feet did not reveal any signs of abnormal weight bearing. The knee joint's general appearance was within normal limits on both the right and the left. Drawer test and McMurray's test were within normal limits bilaterally. Flexion was to 140 degrees and extension was to zero degrees. Private medical records indicate that in March 2006, the Veteran had full range of motion with no effusion. At a March 2007 VA examination there were no signs in either knee of edema, effusion, weakness, tenderness, redness, heat, abnormal movement, subluxation or guarding of movement. Examination of both knees demonstrated no recurrent subluxation, "locking" pain, joint effusion or crepitus. Flexion was to 120 degrees and extension was to zero degrees with pain at the endpoints. At the VA examination on June 5, 2009, the Veteran's knees were tender to palpation bilaterally and there was guarding and crepitus. Flexion was to 90 bilaterally and extension was to zero with pain at the endpoints. The examiner noted that there were zero degrees of additional limitation of motion due to pain with fatigue, lack of endurance, and weakness. Private medical records in April 2010 indicate that on physical examination, the Veteran's right knee revealed trace effusion; and his left knee revealed mild effusion. The appellant demonstrated a full range of knee motion bilaterally. The Veteran had moderate crepitus anteriorly on the right and positive anterior crepitus on the left. The Veteran was tender to palpation in medial joint line bilaterally. The knees were stable in all planes. The distal motor and sensory examination was intact. The Veteran exhibited pain with McMurray's maneuver bilaterally. The Veteran's manifestations of his service-connected right and left knee disabilities have not approached the severity contemplated for a rating higher than 10 percent. As set forth above, in order for the Veteran's service-connected knee disabilities to warrant evaluations in excess of 10 percent, the evidence must show flexion limited to 30 degrees, or extension limited to 15 degrees. These symptoms have clearly not been demonstrated by the record. Indeed, even taking into account the Veteran's complaints of pain, the Board finds that neither knee disability warrants a higher rating. See 38 C.F.R. §§ 4.40, 4.45, 4.71a. Although the June 2005 VA examiner noted that the Veteran's knees were additionally limited by pain, he could not make a determination without resorting to speculation as to degree of additional limitation. While the evidence does show that the March 2007 VA examiner found joint function to additionally be limited by pain, fatigue, weakness, and a lack of endurance by 20 degrees bilaterally, considering such a loss at best indicates flexion to 100 degrees and extension to 20 degrees. Under such circumstances, the Board would consider an additional 20 degree loss of extension to warrant a 30 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5261. However, the Board finds that this "additional limitation of 20 degrees" appears to be an error on the part of the VA examiner. The Veteran has consistently demonstrated full range of knee extension bilaterally; and even in June 2009, he did not demonstrate additional loss of extension to any degree due to pain with fatigue, lack of endurance, and weakness. Hence, read in the context of the entire claim the 2007 note is insufficient to warrant the assignment of an increased rating. See Monzingo v. Shinseki, No. 10-922, 2012 WL 5869404, *7-*8 (Vet. App. November 21, 2012) (a medical report must be read as a whole in the context of the claim.) The VA General Counsel has held that a Veteran may receive separate ratings under Diagnostic Code 5260 (limitation of leg flexion), and Diagnostic Code 5261 (limitation of leg extension) for disability of the same joint. See VAOPGCPREC 9-2004 (2006). The appellant, however, does not demonstrate a compensable loss of motion in either plane of movement when the evidence is considered in its totality. As such a compensable evaluation would not be warranted under Diagnostic Codes 5260 and 5261. Other knee impairments due to instability or recurrent subluxation are evaluated under 38 C.F.R. § 4.71a , Diagnostic Code 5257 as a separate and distinct disability from arthritis of knees. Notably, the appellant is not currently service connected for instability or subluxation in either knee. Hence, this rule does not provide a basis for an increased rating. VAOPGCPREC 23-97 (1997); VAOPGPREC 9-98 (1998); VAOPGPREC 9-04 (2004). The appeal is denied. Other Considerations The Board is aware that an extraschedular rating is a component of an increased rating claim. Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008). If so, factors for consideration in determining whether referral for an extraschedular rating is warranted include marked interference with employment or frequent periods of hospitalization that indicate that application of the regular schedular standards would be impracticable. Thun, citing 38 C.F.R. § 3.321(b)(1) (2012). In the present case, there is no evidence that any of the increased rating issues on appeal present such an unusual or exceptional disability picture at any time so as to require consideration of an extra-schedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(1). The rating criteria pertaining to disorders addressed herein focus on symptomatology which describes the Veteran's current disability picture. The appellant has described decreased hearing acuity, back pain with loss of motion, hip pain with loss of motion, radicular pain, numbness, and weakness in both lower extremities, and knee pain with loss of motion. Thus, it appears that the schedular criteria adequately compensate for any loss in earning capacity, and referral for extraschedular consideration is not warranted. Id. The Board acknowledges the holding in Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) regarding the question of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders. In the present case, however, there is no evidence that reasonably raises a claim of entitlement to individual unemployability. Indeed, the Veteran testified in September 2009 that he was working as an instructor in the Sheriff's Department. Hence, there is no duty to address this matter. ORDER The issues of entitlement to service connection for restless leg syndrome, and entitlement to an increased evaluations for degenerative changes of the right ankle, right metatarsalphalangeal joint, and left metatarsalphalangeal joint are dismissed. Entitlement to an evaluation in excess of 20 percent prior to November 10, 2008, for a bilateral hearing loss is denied. Entitlement to a 40 percent rating effective November 10, 2008, for a bilateral hearing loss is granted subject to the laws and regulations governing the award of monetary benefits. Entitlement to an evaluation in excess of 10 percent prior to March 15, 2007, for lumbar degenerative disc disease is denied. Entitlement to a 20 percent evaluation for lumbar degenerative disc disease since March 15, 2007 is granted subject to the laws and regulations governing the award of monetary benefits. Entitlement to an evaluation in excess of 10 percent for avascular necrosis of the right hip is denied. Entitlement to an evaluation in excess of 10 percent for avascular necrosis of the left hip is denied. Entitlement to an evaluation in excess of 10 percent as of June 5, 2009, for sciatic nerve impingement of the right leg is denied. Entitlement to an evaluation in excess of 10 percent as of June 5, 2009, for sciatic nerve impingement of the left leg is denied. Entitlement to an evaluation in excess of 10 percent for degenerative joint disease of the right knee is denied. Entitlement to an evaluation in excess of 10 percent for degenerative changes of the left knee is denied. REMAND With regard to the issue of entitlement to an evaluation in excess of 40 percent since November 10, 2008, for bilateral hearing loss, the Veteran's representative argued in September 2012 that the last VA audiology examination is stale. United States Court of Appeals for Veterans Claims (Court) has impressed on VA on many occasions the necessity of obtaining a recent VA examination. See, e.g., Green v. Derwinski, 1 Vet. App. 121, 124 (1991) [the duty to assist includes "the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one"]. Thus, the Veteran should be scheduled to undergo VA audiology examination to determine the current severity of his bilateral hearing loss since November 10, 2008. With regard to the issue of entitlement to an evaluation in excess of 20 percent since March 15, 2007, for lumbar degenerative changes, the Veteran testified in September 2012 that the June 5, 2009 VA examiner did not use a goniometer when testing his range of motion of his lumbar spine. VA regulation states that the use of a goniometer in the measurement of limitation of motion is indispensable. 38 C.F.R. § 4.46. Moreover, the appellant is reporting increasing functional limitations due to his lumbar spine. As such, the June 2009 examination report is insufficient for rating purposes, and the Veteran should be scheduled to undergo the appropriate VA examination to determine the current severity of his lumbar degenerative disc disease. Moreover, the Veteran submitted a statement by his treating physician, Dr. Yagnick, who reports treating the appellant since August 2010 for lumbar degenerative disc disease with sciatica. As such, the Board finds that an attempt should be made to obtain Dr. Yagnick's treatment records and associate them with the claims file. Finally, since the RO issued a statement of the case in May 2010, the Veteran has submitted literally thousands of pages of additional evidence. To date a supplemental statement of the case has yet to be issued to reflect the RO's consideration of that evidence. Hence, further development is required. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to indicate if he has received any VA or non-VA medical treatment for his hearing loss, lumbar spine disability, and bilateral lower extremity sciatic nerve impairment that is not evidenced by the current record. If so, the Veteran should be provided with the necessary authorizations for the release of any treatment records not currently on file and especially for private treatment of Dr. Yagnick since August 2010. These records should then be obtained and associated with the claims folder. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. The Veteran should be afforded the appropriate VA audiology examination to determine the current manifestations and severity of his service-connected bilateral hearing loss. Access to the claims file, Virtual VA and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. All pertinent symptomatology and findings should be reported in detail. The examiner should describe the functional effects caused by a hearing disability in any final report. If the examiner cannot obtain reliable results, the examination report should so state. The examiner should provide a complete rationale for any opinion provided. 3. The Veteran should be also afforded a VA examination to ascertain the current severity of his lumbar degenerative disc disease and lower extremity sciatica. Access to the claims file, Virtual VA and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The examiner must address whether the Veteran's lumbar disorder is manifested by weakened movement, excess fatigability, or incoordination. If so, any additional disability must be expressed in terms of the degree of additional range of motion loss. The examiner should identify discuss the degree of any sciatic nerve impairment to include whether the involvement is only sensory (neuralgia), or if it is characterized by organic changes such as loss of reflexes, muscle atrophy, sensory disturbances, constant pain (neuritis) as well as a characterization of the symptoms as to whether they represent complete or incomplete paralysis. If incomplete paralysis is represented by the manifestations this should be characterized as mild, moderate or severe (with or without marked muscular atrophy). 4. The Veteran is to be notified that it is his responsibility to report for the examinations and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 , 3.655 (2012). In the event that the Veteran does not report for any of the aforementioned examinations, documentation should be obtained which shows that notice scheduling the examinations was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 5. Following any additional indicated development, the case should be reviewed on the basis of the additional evidence. If any benefit sought is not granted in full, the Veteran must be furnished a Supplemental Statement of the Case which addresses all evidence received since May 2010. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs