Citation Nr: 1317892 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 08-27 090 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for residuals of a left shoulder injury. 2. Entitlement to service connection for a right shoulder disability. 3. Entitlement to service connection for a disability of the cervical spine. 4. Entitlement to service connection for ulnar nerve impingement of the left upper extremity. 5. Entitlement to an initial compensable disability rating for the service-connected hearing loss. 6. Entitlement to service connection for an acquired psychiatric disorder, to include dysthymic disorder. 7. Entitlement to an increased initial evaluation for the service-connected degenerative disc disease, lumbar spine L5-S1 currently evaluated as 20 percent disabling. 8. Entitlement to an initial disability evaluation in excess of 20 percent for the service-connected sciatica of the right leg. 9. Entitlement to an initial disability evaluation in excess of 20 percent for the service-connected sciatica of the left leg. 10. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: David L. Huffman, Attorney ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The Veteran had active service from July 1993 to November 1995. This case is before the Board of Veterans' Appeals (Board) on appeal from November 2006, March 2009 and November 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In the November 2006 rating decision, service connection was granted for degenerative disc disease (DDD) of the lumbar spine at L5-S1 with an initial 20 percent rating assigned, effective from August 11, 2005. Claims of service connection for a left shoulder condition; anxiety and depression, and entitlement to a TDIU were denied. The Veteran disagreed with the initial rating assigned for the DDD of the lumbar spine, and disagreed with the denials of service connection. Her Notice of Disagreement (NOD) with November 2006 determination was received at the RO in January 2007, the RO issued a Statement of the Case (SOC) addressing all issues in August 2008, and the Veteran perfected an appeal to the Board, with the submission of a VA Form 9, received at the RO in August 2008. In the March 2009 rating decision, the RO granted service connection for sciatica of the right leg and left leg, and assigned 10 percent disability ratings for each leg, effective from February 11, 2008. The claims of service connection for ulnar nerve impingement of the left upper extremity; cervical spine sprain/strain; bilateral hearing loss; and, a right shoulder condition were denied. The Veteran disagreed with the initial 10 percent disability ratings assigned for the service-connected sciatica of the right leg and left leg, and argued that 20 percent ratings were warranted. She also disagreed with the denials of service connection for the remaining conditions. Her NOD with the March 2009 rating determination was received at the RO in October 2009. The RO issued an SOC addressing all issues in November 2010, and the Veteran perfected an appeal to the Board with the submission of a VA Form 9, received at the RO in December 2010. On review, the RO granted bilateral 20 percent ratings for sciatica in March 2011, from the date of her original grant of service connection; however, she submitted a new statement arguing that bilateral 40 percent ratings were now warranted. Thus, the issue remains in appellate status. In the November 2010 rating decision, the RO granted the Veteran's previously denied claim of service connection for bilateral hearing loss and assigned an initial noncompensable rating effective from February 11, 2008. The Veteran's NOD with the initial noncompensable disability rating assigned for the service-connected hearing loss was received at the RO in January 2011. The RO issued an SOC addressing the issue in January 2013. At some point on or after February 7, 2013, and prior to March 8, 2013, the RO received the Veteran's Form 9, substantive appeal to the Board with respect to the issue of entitlement to an initial compensable rating assigned for the service-connected hearing loss. That Form 9 was faxed to the Board on March 7, 2013 and was date stamped by the Board on March 8, 2013. The Form 9 was transferred back to the RO who still retained jurisdiction and date stamped as received on March 25, 2013, prior to the case being certified to the Board in early April 2013, and prior to the Veteran's scheduled travel Board hearing in April 2013. Meanwhile, the Veteran initially requested to appear for a personal hearing before a Decision Review Officer (DRO) at the RO. According to a January 2011 conference report, the hearing was scheduled, but the Veteran did not report for the hearing. The conference report also notes that the RO contacted the Veteran for an informal conference. The Veteran's attorney called her on the phone and they agreed with the RO to schedule VA examinations to assess the Veteran's back and the sciatica and any other conditions deemed necessary. The Veteran was scheduled for a personal hearing before the Board at the RO in April 2013, as requested; however, she failed to appear. Under the applicable regulation, if an appellant fails to appear for a scheduled hearing and a request for postponement has not been received and granted, the case will be processed as though the request for a hearing had been withdrawn. 38 C.F.R. § 20.702 (d) (2012). As no good cause has been alleged, or request received, this Veteran's request for a hearing is considered withdrawn. In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim. The documents in the VVA file have been reviewed, and all relevant records are either duplicative of the evidence in the paper claims file or are separately identified and summarized below. The issues of entitlement to service connection for an acquired psychiatric disorder, to include dysthymic disorder, anxiety and depression; entitlement to a higher initial disability rating for the service-connected degenerative disc disease, lumbar spine L5-S1 currently evaluated as 20 percent disabling; entitlement to an initial disability evaluation in excess of 20 percent for the service-connected sciatica of the right leg; entitlement to an initial disability evaluation in excess of 20 percent for the service-connected sciatica of the left leg; and, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), 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. The Veteran's tendonitis of the left shoulder was first shown many years following discharge from service and it is unrelated to any injury, disease or other event in service, to include the confirmed incident with the tailgate of the 5 ton truck. 2. The Veteran has a loss of the normal lordotic curve of the cervical spine with muscle spasms that was first shown many years following discharge from service, and is not linked to any injury or disease in service, including the service-connected DDD of the lumbar spine. 3. The Veteran's tendonitis of the right shoulder was first shown many years following discharge from service and is unrelated to any injury, event or disease in service, including the service-connected DDD of the lumbar spine. 4. The Veteran's left ulnar nerve impingement was first shown many years following discharge from service, and is unrelated to any injury, event or disease in service, including the service-connected DDD of the lumbar spine. 5. Throughout the period of the appeal, the Veteran's numeric designation of hearing impairment based on pure tone threshold average and speech discrimination scores (Table VI) and/or based on pure tone threshold average only (Table VIa) is no worse than Level II hearing in the left ear and no worse than Level II hearing in the right ear. 6. The Veteran's assertions that she injured her left shoulder in service are inconsistent and in contrast to her previous self-reported history of a right shoulder injury in service; and, her assertions of a right shoulder injury in service are inconsistent and in contrast with her subsequent denial of a right shoulder injury in service; the Veteran's competent lay evidence as to continuity of symptoms of any shoulder injury since service is not credible. CONCLUSIONS OF LAW 1. Tendonitis of the left shoulder was not incurred in or aggravated in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2012). 2. The Veteran's tendonitis and/or bursitis of the right shoulder was not incurred in or aggravated in service; and, is not proximately due to or a result of a service-connected disease or injury. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2012). 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2012). 3. Ulnar nerve impingement of the left upper extremity was not incurred in or aggravated during service; and, is not proximately due to or the result of a service-connected disease or injury. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2012). 4. The Veteran's loss of the normal lordotic curve of the cervical spine with muscle spasms was not incurred in or aggravated in service; and, is not proximately due to or a result of a service-connected disease or injury. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2012). 5. The criteria for an initial compensable disability rating for the service-connected bilateral hearing loss disability have not been met during any time period covered by this claim. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.85, Tables VI, VIA, VII, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO sent the Veteran notices in September 2005 and March 2006 prior to the November 2006 rating decision; and, sent notices in March 2008 and May 2008, prior to the March 2009 rating decision. The notifications substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim of service connection and the relative duties of VA and the claimant to obtain evidence. In response to the notices, the Veteran has provided authorization to obtain private records to support her claim. The RO, in turn, has obtained, to the extent possible, all available records identified by the Veteran as pertinent to her claim. With regard to the claim of entitlement to an initial compensable rating for the service-connected hearing loss, the underlying claim of service connection was granted for hearing loss, and the Veteran is challenging the initial rating assigned. In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify with respect to the hearing loss claim in this case has been satisfied. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). In short, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of her claim, as she has provided statements in support of her claims and she has been notified of the types of evidence needed to substantiate her claims. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009); Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). VA has also done everything reasonably possible to assist the Veteran with respect to her claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). VA has obtained service treatment records, assisted the Veteran in obtaining evidence, and afforded the Veteran physical examinations to obtain competent medical opinions with respect to the etiology of the Veteran's claimed right shoulder tendonitis, left shoulder tendonitis with ulnar nerve impingement, and cervical strain/sprain. VA has obtained all necessary medical opinions as to etiology; and, has obtained an audio exam that is adequate to rating the hearing loss. All known and available records relevant to the issues on appeal (that have not been remanded at this time) have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. Although no examiner specifically addressed the Veteran's contention that her claimed left ulnar neuropathy stems from her left shoulder disability, this is harmless error because as explained below, the claim of service connection for a left shoulder disability is denied and the Veteran has never claimed, nor does the record suggest, that any left ulnar nerve impingement is related to service or to a service-connected disability. The Veteran has consistently asserted that her nerve impingement is related to her shoulder/cervical spine disability, and a VA examiner in May 2011 specifically opined that the Veteran's cervical spine disability was unrelated to the DDD of the lumbar spine. Therefore, any neurological impairment stemming from a nonservice-connected left shoulder disability and/or a nonservice-connected cervical spine disability is similarly not service-connected. In addition, it is acknowledged that additional VA records dated from October 2010 through August 2012 from the Clarksburg VA Medical Center (VAMC) were added to the Veteran's VVA file in May 2013, after the RO issued its most recent supplemental statement of the case (SSOC) in September 2012. In May 2013 correspondence, the Veteran's attorney reported that he received a copy of these records. Although the attorney did not specifically waive a review of these records by the RO in the first instance, a Board review of the records indicates that the VAMC records from October 2010 through August 2012 are either duplicative of evidence already in the paper claims file; or, they are not relevant to the claims on appeal for which a decision is currently being issued. Thus, there is no need to request such a waiver of review by the RO in the first instance and no need to send the case back to the RO for issuance of an SSOC before appellate disposition of these claims. In sum, VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claims at this time. II. Service Connection The Veteran seeks service connection for residuals of a left shoulder injury, as well as disabilities claimed secondary thereto, including a right shoulder injury, ulnar nerve impingement of the left upper extremity and cervical sprain/strain. She asserts that she injured her shoulder in a January 1994 tailgate injury in service at the same time she injured her low back. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110 , 38 C.F.R. § 3.303 . Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected and once established for a secondary condition, the secondary condition shall be considered part of the original condition. This is secondary service connection. 38 C.F.R. § 3.310(a). Additionally, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease will be service connected. However, VA will not concede a nonservice-connected aggravation unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of evidence establishing the current level of severity of the nonservice-connected disease. This is service connection on an aggravation theory. 38 U.S.C.A. § 3.310(b). The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Competent and credible lay evidence may establish the presence of observable symptomatology and, in certain circumstances, may provide a basis for establishing entitlement to service connection. When, for example, a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh the lay testimony and make a credibility determination as to whether it supports service connection. See, e.g., Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Medical evidence is therefore not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Nonetheless, although claimants may be competent to provide the diagnoses of simple conditions, such as a broken leg, separated shoulder, pes planus (flat feet), tinnitus (ringing in the ears), varicose veins, etc., they are not competent to provide evidence on more complex medical questions beyond simple observations. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (indicating lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a 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). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue). Even if lay testimony is competent, should VA find it to be mistaken or lacking credibility, the Board may reject it as unpersuasive. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing when he has testified. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Board may find a lack of credibility in, for example, conflicting medical statements or witness biases. See also Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). The lack of contemporaneous medical evidence is also relevant; however, the mere lack of such evidence may not constitute the sole basis for discrediting the lay evidence. Id. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran seeks service connection for a left shoulder disability; a right shoulder disability; ulnar nerve impingement, left upper extremity; and, cervical sprain/strain. She maintains, in essence, that she injured her shoulder in service, along with her back, and that her other joint disabilities are secondary to the shoulder injury, and/or the service-connected DDD of the lumbar spine. Notably, when the Veteran filed her claim of service connection for a shoulder injury, she reported that it was her right shoulder that was injured in the January 1994 accident. She specifically relayed this to a VA examiner in September 2006, and she submitted a November 2005 lay statement from her Army roommate and fellow soldier who corroborated the Veteran's account of a right shoulder injury in service in January 1994. After the VA examiner reviewed the Veteran's service treatment records (STRs), and revealed that numerous STR's referred to treatment for a left shoulder injury in January 1994, the Veteran began referring to her injury, without any explanation, as a left shoulder injury instead of a right shoulder injury. Historically, the Veteran filed her initial claim of service connection for a back and shoulder disability in September 2005. At that time, the Veteran reported that she suffered an accident in service in 1994 that involved a malfunction with the tailgate on the 5-ton truck she was driving. The tailgate fell and landed on her shoulder, knocking her to the ground. She was treated for shoulder and back pain. The Veteran further indicated that she has suffered from pain in her back, hip, leg and shoulder since that time, including during her pregnancy in 1994. A review of the Veteran's service treatment records (STRs) corroborates the Veteran's assertions regarding the in-service tailgate accident in January 1994 during which she injured her shoulder and back. The STRs specifically and consistently refer to a left shoulder injury, and do not mention any injury to the right shoulder. The initial assessment subsequent to the accident was acute contusion of the left shoulder and acute strain of the lumbar muscles. The Veteran was seen again two days later with continued complaints of left shoulder and back pain. A June 1995 STR notes that the Veteran's left shoulder was bruised in the January 1994 accident, but the back pain was still bothering her. She described the pain as "throbbing in the low back." In July 1995, the Veteran continued to report low back pain, and began reporting right hip pain with stiffness in the right knee and hip. August 1995 physical therapy and treatment notes reveal that the Veteran continued to have low back pain with decreased deep tendon reflexes and paresthesias. An MRI in September 1995 showed degenerative changes at L5/S1. Specifically, the MRI report indicated degenerative disc disease at L5/S1. There was mild disc space narrowing and mild bulging of the disc at L5/S1, with some end plate signal changes at the inferior end plate of L5 and the superior end palate of S1 likely degenerative in nature. The Veteran's October 1995 discharge physical examination report and report of medical history notes low back pain, with a specific reference to the in-service injury in January 1994, but neither the Veteran nor the physician make any mention of shoulder pain or an injury to either shoulder. The only musculoskeletal pain reported on examination was that of recurrent back pain. The Veteran was discharged from service in November 1995, and was treated at a private facility in December 1995 for unstable angina. Records from the Camden Clark Memorial Hospital indicate that the Veteran had atypical chest pain. She was also diagnosed with anxiety and started on Buspar and Wellbutrin. At a VA joints examination in September 2006, the Veteran reported pain in her right shoulder, without reference to her left. Examination of the left shoulder revealed completely normal range of motion without change after repetition; and, there was a negative impingement sign on the left and the right. Examination of the right shoulder revealed tenderness to palpation over the posterior shoulder. Range of motion of the right shoulder was limited. Grip strength on the left was 60 pounds compared to 25 pounds on the right. X-rays of the right shoulder were unremarkable. There were no x-rays taken of the left shoulder. The diagnosis was right shoulder bursitis. The examiner opined that the current right shoulder bursitis is unrelated to the in-service injury because the STRs clearly demonstrate that the in-service shoulder injury affected the left shoulder and not the right shoulder. With regard to the low back, the examiner opined that the Veteran's low back disability was related to the injury in service. In a November 2006 rating decision, the RO denied the claim of service connection for a left shoulder condition, but granted the claim of service connection for DDD of the lumbar spine L5-S1. In the Veteran's January 2007 Notice of Disagreement (NOD) and in additional statements submitted in response to the November 2006 rating decision, the Veteran wrote that she could not understand how her claim for a shoulder disability could be denied when the low back claim was granted, and there was evidence of a shoulder injury in service just as there was evidence of a back injury at the same time. Significantly, however, the Veteran never addressed or referenced the discrepancy between the documentation in the STRs showing a left shoulder injury, and the Veteran's own self-reported history of a right shoulder injury. In February 2008, the Veteran submitted additional claims, requesting service connection for sciatica of the right and left legs (claimed as secondary to the lumbar spine injury); ulnar nerve impingement (claimed as secondary to the left shoulder injury), cervical spine strain and sprain (claimed as secondary to the left shoulder injury); and, hearing loss. From this point forward, the Veteran began referring to the January 1994 in-service shoulder injury as a left shoulder injury, again, without any explanation for the change from her original claim of a right shoulder injury in service. In a May 2008 lay statement, the Veteran's husband reported that he had witnessed the Veteran's pain worsen over the years. He stated that she now has trouble driving, walking up the stairs, and picking up the children. Her pain involved her back, shoulder and legs. The Veteran's husband did not specifically indicate as to which shoulder he was referring, but further into the lay statement he once again reiterated that their children have suffered because "[the Veteran] cannot overcome the pain from her back, legs, and shoulders" (pleural). A September 2008 private examination report prepared by Dr. S reveals that the Veteran was reportedly suffering from pain, weakness and numbness in the arms, back, feet, hands, hips, legs and shoulders. The diagnosis was lumbar radiculopathy and lower extremity neuropathy. Other private treatment records from Dr. B dating from March 2006 through August 2008 show a steady progression of an increase in body pain, including in the lumbar spine, cervical spine, and legs. A November 2008 x-ray of the left shoulder was unremarkable. In a February 2009 VA opinion, the examiner opined that the Veteran had L5 radiculopathy of the bilateral lower extremities, based on findings from an April 2008 VA examination and an EMG study from March 2008. The examiner opined that the radiculopathy was caused by or a result of service-connected DDD of the lumbar spine. The examiner added that the Veteran's reported symptoms were consistent with radiculopathy which are supported by MRI findings; and, it is not uncommon for an EMG study to be normal in the case of early or mild L5 radiculopathy. Significantly, the March 2008 EMG study noted post insertion repetitive discharges similar to myotonia. In a March 2009 rating decision, service connection was granted for sciatica of the right leg and the left leg, with 10 percent ratings assigned for each leg. The 10 percent ratings were later increased to 20 percent, effective from the date of claim, February 11, 2008. In that rating decision, the RO also denied claims of service connection for ulnar nerve impingement left upper extremity, cervical spine strain/sprain, and for a right shoulder condition. In the Veteran's October 2009 NOD with the March 2009 rating decision, the Veteran asserted that she was hit by a tailgate in service injuring her left shoulder, cervical spine, and lumbar spine. Although the Veteran previously claimed service-connected for a cervical sprain/strain as secondary to a shoulder injury, her NOD suggests, in contrast to her previous assertions, that she injured her cervical spine directly in the January 1994 in-service injury. In December 2010, the Veteran submitted additional private treatment records in support of her claims. These records are from Dr. S at Mountaineer Pain Relief & Rehabilitation Center. Significantly, these records, which date from November 2008 to November 2010, reveal that the Veteran was treated for increasing back pain and radicular pain without further diagnosis until approximately October 2009. An October 2009 progress note indicates that the Veteran had myotonic discharges with runs of positive sharp waves. An EMG study of the lower extremities was normal, but an needle EMG of the lower extremities showed myotonic discharges in all muscles tested with runs of positive sharp waves. The assessment was myotonic discharges of both lower extremities. A January 2010 progress note from Dr. S notes an exacerbation of chronic low back pain; and, that the Veteran was having to reschedule her referral at the Genetics Clinic at WVU because of scheduling difficulties. The assessment was lumbar radiculopathy and myotonia, both lower extremities. A March 2010 progress note from Dr. S reveals that the Veteran was seen by Dr. G at WVU in Morgantown. She had a neurological examination and was diagnosed with myotonic dystrophy type II. The following month, Dr. S's progress note revealed that the Veteran had diffuse muscle tightness in the cervical, thoracic and lumbar paravertebral region. The Veteran complained of pain in both upper and both lower extremities. She also had trunk pain. In February 2011, the Veteran appeared for a VA joints examination. The examiner noted a review of the claims file. The Veteran reported worsening back pain, and left lateral neck and superior shoulder pain since the tailgate injury in service. With regard to her low back, the examination reports notes that the Veteran has incapacitating episodes of intervertebral disc syndrome and the Veteran reported that her private doctor, Dr. B, put her on bed rest several times in the past; however, she could not provide dates. With regard to her shoulder, the Veteran reported that the left shoulder was injured in service in 1994 when she was hit by a tailgate, and she denied a right shoulder injury at that time. Examination of both shoulders revealed bilateral tendonitis. The examiner noted a review of the Veteran's private records, and specifically remarked that the Veteran had a diagnosis of myotonia or myotonic dystrophy type II made by a neurologist in Morgantown. The examiner explained that myotonic dystrophy (DM) is a clinically and genetically heterogeneous disorder, with two levels reflecting different severities, DM1 and DM2. The examiner indicated that DM2 affects the neck flexor and finger flexor muscles in the earliest stages, and also has a presenting feature of weakness in the hip girdle region. Weakness of thigh, hip flexor and extensor muscles frequently impairs the ability to arise from a squat, arise from a chair, or climb stairs. The examiner also explained that pain was a major complaint and management concern in DM2 and is one of the symptoms (along with stiffness and fatigue) that can bring patients to medical attention before the onset of symptomatic weakness. The pain is typically proximal in location, affects the legs more than the arms, is unrelated to myotonia, varies from day to day, and may be problematic at rest. Chest pain may trigger a work-up for heart disease. The examiner opined that the Veteran left shoulder tendonitis was not caused by or a result of the in-service tailgate injury in 1994. The examiner reasoned that the Veteran had an acute left shoulder injury in 1994 but there is no evidence of a chronic shoulder residual at the time of separation form the military; and, the Veteran's left shoulder examination was completely normal in 2006, with no evidence of a chronic condition from 1994 to 2006. The examiner also stated that the Veteran has since been diagnosed with myotonic dystrophy type II which could account for the reported left lateral neck and shoulder problems. In a May 2011 opinion, a VA examiner opined that the Veteran's cervical spine condition was not caused by or a result of the service-connected DDD of the lumbar spine. The examiner referred to February 2011 cervical spine x-rays that revealed a loss of the normal lordotic curve which may be related with muscle spasm. The examiner reasoned that the muscle spasms in the Veteran's neck were directly caused by the myotonic dystrophy. The examiner also noted that there was no medical link between DDD of the lumbar spine and muscle spasm in the cervical spine. In summary, the competent medical evidence of record shows that the Veteran suffered an acute left shoulder injury and a low back injury in service in January 1994. She was subsequently treated for left shoulder pain and back pain, but at some point, the treatment for shoulder pain ceased, while the low back pain and treatment therefor, continued. At the time of discharge, the Veteran reported recurrent back pain, but there was no mention of shoulder pain or a chronic shoulder condition. A September 2006 examination report indicates that the Veteran's left shoulder was normal and the right shoulder showed signs of bursitis. At the September 2006 examination, the Veteran reported an injury to the right shoulder, not the left; and, significantly, the Veteran's range of motion of the right shoulder was limited, but the range of motion of the left shoulder was within normal limits. Then, without explanation, after it was explained that the STRs revealed a left shoulder injury, the Veteran suddenly began referring to her disability as a left shoulder injury and began to deny an injury to the right shoulder. In essence, the Veteran's own self-reported history is entirely internally inconsistent. She first reported a right shoulder injury, then subsequently denied a right shoulder injury and reported an injury to the opposite shoulder, which coincides with what is shown in the STRs. Further, she has not provided any explanation for, nor acknowledged the existence of, the contradictory statements. Moreover, when the Veteran amended her claim to include service connection for a cervical spine sprain/strain, she initially claimed that this disability was secondary to the shoulder condition; however, in subsequent statements she asserted that she injured her cervical spine at the same time she injured her shoulder. In other words, she first indicated that the cervical spine disability arose secondary to the shoulder and back disabilities; but later, she insisted that she injured her cervical spine at the same time that she injured her shoulder and back in January 1994, even though there is no record of a neck injury or neck pain until many years after discharge from service. Because the Veteran now has a diagnosis of myotonic dystrophy, the Board does not question the Veteran's reports of current pain in the neck or either shoulder; however, in light of her inconsistent and contradictory statements noted above, the Board finds that the Veteran is not credible and her lay statements (and that of her Army roommate) with regard to the origin of her shoulder pain, and the timing and continuity of symptoms since service, are not persuasive and not probative. Having found the lay statements not credible, the only probative evidence of record weighs against the claim of service connection for residuals of a left shoulder disability. That evidence consists of VA examinations and private treatment records summarized above. Notably, the September 2006 examination reveals a normal left shoulder and bursitis in the right shoulder, based on normal range of motion of the left shoulder and normal grip strength, versus limited motion in the right should and reduced grip strength on the right. X-rays of the left shoulder were not taken in conjunction with that examination; however, x-rays of the left shoulder were subsequently obtained in 2008, after the Veteran began asserting a left shoulder injury in service, as opposed to her original claim of a right shoulder injury in service. A November 2008 x-ray study of the left shoulder was unremarkable. It was not until the February 2011 examination, after the Veteran was diagnosed with myotonic dystrophy, that the record shows a diagnosis of bilateral tendonitis. The February 2011 examiner reviewed the claims file and opined that the left shoulder disability was not related to the in-service injury. He specifically pointed out that the Veteran's STRs revealed an acute injury to the left shoulder in January 1994, as evidenced by the discharge examination, which was silent as to any chronic shoulder disability. Moreover, the examiner also pointed out that the Veteran's left shoulder was normal in 2006; in fact, the Veteran did not report a left shoulder disability at the September 2006 examination and the objective findings at that examination were consistent with no left shoulder disability. Based on the objective findings on examination in September 2006 and February 2011, and no probative, competent and credible evidence to the contrary, the criteria for service connection for a left shoulder disability are not met. Likewise, with regard to the claim of service connection for a right shoulder disability, the VA examiner in September 2006 opined that the Veteran's current right shoulder bursitis was unrelated to the in-service shoulder injury because the injury in service clearly involved the left shoulder. This opinion is thorough, based on a full review of the records, and indicates the underlying reason for the conclusion, which is supported by the record. There is no competent and probative evidence to the contrary; therefore, service connection for a right shoulder on a direct basis is not warranted. Similarly, service connection for a cervical spine sprain/strain is also not warranted on a direct basis because there is no evidence that the Veteran's January 1994 injury involved the cervical spine, and a VA examiner in May 2011 specifically opined that the Veteran's current cervical spine disability of loss of lordotic curve with muscle spasm is directly related to the Veteran's nonservice-connected, genetic, myotonic dystrophy. As the Veteran's lay statements as to the timing and continuity of cervical spine pain are not credible, the only probative evidence weighs against the claim. The opinion supported by the record, and there is no opinion to the contrary. Moreover, the May 2011 examiner's opinion is consistent with the timing of the Veteran's complaints of neck pain according to the private treatment records. Neither the STRs nor the September 2006 VA examination mention any neck pain; however, the private records beginning in 2005 show that the Veteran began complaining of increased back pain which progressed throughout 2006, and then began including neck pain, along with pain in the legs, both shoulders, hips and increased back pain, in 2008 which was commensurate with the time period just prior to the diagnosis of myotonic dystrophy in 2010. In other words, the Veteran's development of muscular dystrophy coincides with the documented increase in pain and increase in the body parts affected by the pain. With regard to the claims of service connection on a secondary basis, which include service connection for a cervical spine disability, a right shoulder disability, and ulnar nerve impingement, all claimed as due to the left shoulder disability, these claims must be denied because, as explained above, service connection is not warranted for a left shoulder disability. Thus, even if these disabilities are a result of, or caused by, the current left shoulder condition, that condition is not service-connected; therefore, no disability secondary thereto warrants service connection. Moreover, there is no basis on which to grant service connection on a direct basis because there is no nexus between any disease, injury or event in service, and any of the Veteran's current shoulder, ulnar nerve impingement or cervical spine disabilities. There is no indication in the service treatment records that the Veteran injured her cervical spine, or experienced ulnar nerve impingement on the left. As noted above, the Veteran's reported history in this regard is not probative because of inconsistent and contradictory statements as to the onset of symptoms. Initially, the Veteran reported that she developed neck pain and ulnar nerve impingement on the left as a result of, or secondary to, the left shoulder disability; however, as the probative evidence of record demonstrates that the Veteran's left shoulder bursitis is unrelated to service, it follows then, that any disability secondary thereto is also unrelated to service. The Veteran also asserts that her current cervical spine disability stems from the service-connected DDD of the lumbar spine; however, no examiner has opined as such, and the Veteran is not competent to determine that medical question, as it is beyond her scope of medical knowledge. Although the Veteran is competent to report symptoms of pain, in this case her statements have been found not credible; and therefore not probative. Further, the May 2011 VA examiner specifically opined that there was no medical link between the Veteran's service-connected DDD of the lumbar spine and the Veteran's cervical spine disability because the muscle spasms in the Veteran's neck were a direct result of the myotonic dystrophy. While sympathetic to the Veteran's genetic myotonic dystrophy, it is clear that her chronic pain, with the exception of the lumbar spine, originated after service, and, coincidentally, became worse as her private doctors treated her for pain and tested her for various disabilities, which ultimately resulted in the diagnosis of myotonic dystrophy, type II. The VA examiner in February 2011 specifically described the progression of the disease which, not surprisingly, nearly identically parallels the Veteran's report of symptoms to her private doctors beginning in 2005. This includes pain prior to weakness, including in the legs, hips and neck with increased pain as the disease progressed; problems with sleep; chest pain (in December 2005) that was first thought to be related to heart disease; and difficulty climbing stairs. There is no doubt that the STRs show that the Veteran had an acute injury to her left shoulder in service, and complained of back pain since the injury and at discharge, but, for all the foregoing reasons, the competent and probative post-service evidence establishes that service connection is not warranted for a left shoulder disability, a right shoulder disability, a cervical spine disability or ulnar nerve impingement of the left shoulder. There is no credible evidence of continuity of symptoms, and the competent opinions of record weigh against the claims. For these reasons, the preponderance of the evidence is against the claims and service connection is not warranted for a left shoulder disability, a right shoulder disability, a cervical spine disability and ulnar nerve impingement of the left upper extremity. As the preponderance of the evidence weighs against the claims, the benefit of the doubt rule is not for application. 38 U.S.C.A. § 5107(b), 38 C.F.R. § 4.3. III. Increased Rating - hearing loss In a November 2010 rating decision, service connection for bilateral hearing loss was granted, and an initial noncompensable rating was assigned effective from February 11, 2008. The Veteran maintains that a compensable rating is warranted for her service-connected hearing loss since the effective date of service connection. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity resulting from a disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4. When there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Since the initial grant of service connection, the Veteran's hearing loss has been assigned a 0 percent (noncompensable) disability rating. In cases such as this, where the Veteran appeals the initial rating assigned for a service-connected disability, consideration must be given to "staged" ratings, i.e., disability ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3 (2006). The assignment of disability ratings for hearing impairment are derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992); see also Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007) (indicating that the criteria for evaluating the degree of impairment resulting from hearing loss under the Rating Schedule, unlike extraschedular consideration under section 3.321(b) of the regulations, rely exclusively on objective test results). An examination for hearing impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations are to be conducted without the use of hearing aids. To evaluate the degree of disability from defective hearing, the rating schedule establishes 11 auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. These are assigned based on a combination of the percent of speech discrimination and the pure tone threshold average, as contained in a series of tables within the regulations. The pure tone threshold average is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. 38 C.F.R. § 4.85. This average is used in all cases (including those in Sec. 4.86) to determine the Roman numeral designation for hearing impairment where the axes intersect. Average pure tone decibel loss for each ear is located on Table VI along a horizontal axis, and percent of discrimination is located along a vertical axis. The results are then matched between the "better" ear and the "poorer" ear on Table VII to produce a disability rating under Code 6100. To warrant the assignment of a compensable rating for bilateral hearing loss, the evidence must show that the hearing loss rises to the requisite level of severity as proscribed in 38 C.F.R. § 4.85, Diagnostic Code 6100, Table VII. Additionally, for exceptional patterns of hearing, under 38 C.F.R. § 4.86(a), when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or higher, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa of 38 C.F.R. § 4.85, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). When the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. That numeral is then elevated to the next higher Roman numeral. Again, each ear will be evaluated separately. 38 C.F.R. § 4.86(b). At a VA examination in July 2010, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 15 25 20 LEFT 20 15 15 15 The average in the right ear was 21.25 and the average in the left ear was 16.25. Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 84 percent in the left ear. These figures, when applied to 38 C.F.R. § 4.85, Table VI, correspond to Level II hearing in the right ear and Level II hearing in the left ear. Application of these levels to Table VII at 38 C.F.R. § 4.85 results in a 0 percent rating. The Veteran's pattern of hearing as shown on the audiogram does not fall into the category of an "exceptional pattern of hearing loss" as defined by 38 C.F.R. § 4.86(a); thus, application of the Veteran's pure tone threshold average to Table VIa is not warranted. There is no other competent medical evidence of record to compare with the above findings, and no other contradictory evidence of record, other than the Veteran's contentions that a higher rating is warranted for her hearing loss. While the Veteran is certainly competent to report her symptom of hearing loss, the medical findings on audiogram demonstrate that a compensable rating is not warranted for the service-connected hearing loss in this case. Additionally, the examiner indicated that the level of hearing loss caused no significant occupational effects. The Veteran has not alleged that the objective examination findings are inaccurate, and she has not reported that her hearing loss has worsened during the course of the appeal. In light of these findings, a compensable rating is not warranted for the service-connected bilateral hearing loss at any time during the period of time covered by this claim. 38 C.F.R. § 4.85, Diagnostic Code 6100. The possibility of staged ratings was considered; however, there are no distinct periods of time where a compensable rating could be assigned based on the evidence of record. In sum, the Veteran's average pure tone threshold does not, in and of itself, show hearing loss significant enough to warrant a higher rating. Moreover, although, the Veteran's reduced word recognition is recognized in the testing environment, it was not deemed significant enough to warrant a compensable rating when applied to the rating formula in conjunction with the average pure tone threshold. In reaching this decision, the Veteran's contentions regarding the severity of her hearing loss have been considered, and the reduced word recognition scores are consistent with the Veteran's report of hearing loss. The objective findings on examination, however, do not allow for the assignment of a compensable rating in this case. The Board is bound by the mechanical formula provided by regulation for the assignment of ratings for service-connected hearing loss, and is without authority to grant a higher rating in this case. The numeric designations in this case correlate to no higher than a 0 percent disability rating. See 38 C.F.R. § 4.85, Tables VI-VII. The preponderance of the evidence is against the claim for a compensable disability rating for the service-connected hearing loss; thus, the doctrine of reasonable doubt is not for application. 38 U.S.C.A. § 5107(b), 38 C.F.R. § 4.3. Finally, the potential application of 38 C.F.R. § 3.321(b)(1) has also been considered. See Thun v. Peake, 22 Vet. App. 111 (2008); Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Here, the symptomatology and impairment caused by the Veteran's service-connected hearing loss are specifically contemplated by the rating criteria for hearing loss. There is no other ratable symptom stemming from the hearing loss that is not currently considered in the rating criteria for rating the hearing loss. All of the Veteran's symptoms and manifestations have been considered based on all available rating criteria pertinent to the ears. In this case, comparing the Veteran's disability level and symptomatology of the hearing loss alone, to the rating schedule, the degree of disability throughout the entire appeal period under consideration is contemplated by the rating schedule and the assigned rating is, therefore, adequate. In the absence of exceptional factors associated with the hearing loss, the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. As such, referral for consideration for an extraschedular evaluation is not warranted here. See 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008); Bagwell v. Brown, 8 Vet. App. 337, 339 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). (CONTINUED ON NEXT PAGE) ORDER The claim of service connection for residuals of a left shoulder injury is denied. The claim of service connection for a right shoulder disability is denied. The claim of service connection for a disability of the cervical spine is denied. The claim of service connection for ulnar nerve impingement, left upper extremity, is denied. The claim for an initial compensable disability rating for the service-connected hearing loss is denied. REMAND The Veteran seeks an initial disability rating in excess of 20 percent for the service-connected DDD of the lumbar spine at L5-S1; and, initial disability ratings in excess of 20 percent each for the service-connected sciatica of the left leg and right leg. In a February 2009 VA opinion, the examiner opined that the Veteran had L5 radiculopathy of the bilateral lower extremities, based on findings from an April 2008 VA examination and an EMG study from March 2008. The examiner opined that the radiculopathy was caused by or a result of service-connected DDD of the lumbar spine. The examiner added that the Veteran's reported symptoms were consistent with radiculopathy which are supported by MRI findings; and, it is not uncommon for an EMG study to be normal in the case of early or mild L5 radiculopathy. Significantly, the March 2008 EMG study noted post insertion repetitive discharges similar to myotonia. In February 2011, the Veteran appeared for a VA joints examination. The examiner noted a review of the claims file. The Veteran reported worsening back pain, and left lateral neck and superior shoulder pain since the tailgate injury in service. With regard to her low back, the examination reports notes that the Veteran has incapacitating episodes of intervertebral disc syndrome and the Veteran reported that her private doctor, Dr. B, put her on bed rest several times in the past; however, she could not provide dates. Further, as noted above, the Veteran was diagnosed with myotonic dystrophy during the course of this appeal. A VA examiner explained that this genetic disease produces pain and weakness, which appears nearly identical to the Veteran's reported symptoms. Thus, it is unclear as to whether any increase in the Veteran's back pain and weakness, and sciatica, is due to the nonservice-connected genetic myotonic dystrophy; and, if so, whether the symptoms attributable to the genetic condition can be disassociated form the service-connected disability. Significantly, when it is not possible to separate the effects of service-connected and non-service-connected disabilities, such effects should be attributed to the service-connected condition. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Because the Veteran's current chronic joint pain and weakness are symptoms generally associated with her recently diagnosed myotonic dystrophy; and, because the level of the Veteran's pain and symptoms coincidentally rose around the time just prior to the diagnosis, it seems logical that at least some of her increased pain and weakness may be due to the onset of her genetic disease. However, the Board is without authority to make a medical determination as to what impact the myotonic dystrophy has had on the Veteran's service-connected disabilities, if any. Although the Board may permissibly draw inferences from the medical evidence, including an overall reading of a VA examination report, any inferences resulting in a medical determination must be independent and cited. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012); Acevedo v. Shinseki, 25 Vet. App. 286, 293-94 (2012). Otherwise, it may be an impermissible medical inference in violation of Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Kahana, 24 Vet. App. at 435. In light of the foregoing, the Veteran's DDD of the lumbar spine and sciatica of both lower extremities require reevaluation before a determination can be made as to whether increased ratings are warranted, and if so, what level of increase is appropriate. In this regard, and after securing the necessary authorization, all of the Veteran's private treatment records from WVU and any other pertinent treatment records not previously secured should be obtained. The Veteran also seeks service connection for a psychiatric disorder claimed as secondary to her back pain. In April 2006, the Veteran claimed service connection for anxiety and depression, to include as secondary to the pain associated with her back pain. The Veteran does not suggest, and the record does not show, that her anxiety and depression began during service or within the first post-service year. Rather, the Veteran maintains that her anxiety and depression are related to her back pain, and have progressively worsened as her back pain has progressively worsened. In September 2005, the Veteran's private physician, Dr. B, notes the Veteran's continued complaints of back pain and increased stress. The report indicates that the Veteran was taking Wellbutrin XL 300 mg., once daily. Under the "psychiatric" section of the report, the examiner noted increased stress. Musculoskeletal exam revealed right lower paraspinal muscle tenderness. The assessment was lumbago-back pain. In March 2006, Dr. B noted that the Veteran's back pain, including sciatica, had worsened. The examiner also noted a diagnosis of anxiety disorder generalized, and indicated that the anxiety had also worsened. Her medication at that time was Zoloft, 100 mg, once daily. A May 2006 private comprehensive psychiatric evaluation notes that the Veteran had a "nervous breakdown" in December [2005]. She reported having classic panic attacks with pain in her chest where she thought she was having a heart attack, with rapid heart rate, shaking, perspiring, and in inability to breathe. The Veteran reported difficulty sleeping, and difficulty concentrating to finish tasks. She also reported having trouble reading because of "spacing out." The diagnoses were panic attack without agoraphobia; dysthymia; and, anxiety disorder, NOS. In June 2006, the Veteran's counselor reported that the Veteran's clinical diagnoses in May and June 2006 were panic disorder with agoraphobia, dysthymia, and anxiety disorder NOS. A VA psychiatric examination was conducted in October 2006. The examiner noted Dr. B's post-service report of March 2006, the psychiatric evaluation from May 2006, and the panic attack in December 2005; and, opined that it was less likely than not that the Veteran's chronic pain caused significant clinical depression. The examiner noted that the Veteran did not appear depressed during the examination. The examiner concluded that the Veteran had a limited documented psychiatric history that could be used to accurately identify the impact of chronic pain on her mental status. The examiner opined that chronic pain might be contributing to depression or some other affective disorder; however, chronic pain does not appear to be causing persistent, significant depression. The October 2006 VA examination is inadequate. First, the VA examiner relied on a diagnosis of depression in providing his opinion. However, many of the private treatment records note generalized anxiety. Moreover, the records from Dr. B reveal that the Veteran's level of anxiety appeared to rise commensurate with the level of severity of the back pain. This suggests that there may be a correlation between the Veteran's anxiety and her level of back pain. To that end, the October 2006 VA examiner does appear to suggest that the Veteran's chronic pain may be aggravating depression or some other affective disorder; however, his opinion is unclear in this regard, particularly given that his diagnosis in October 2006 only included alcohol abuse in partial remission; cocaine abuse in remission; rule out bipolar disorder; impulse control disorder NOS; and, rule out pathological gambling. The examiner did not consider the December 2005 diagnosis of anxiety disorder. According to documentation in the claims file, the Veteran was initially scheduled for a VA psychiatric examination on February 14, 2011, but because she arrived tardy, she could not be seen by the psychiatrist that day and the examination was rescheduled for February 23, 2011. The Veteran failed to report to that examination, and provided no good cause for her failure to appear. Nonetheless, because the VA examination in 2006 was inadequate, and because another VA examination is necessary with respect to the Veteran's claims for increased ratings for the service-connected DDD of the lumbar spine and sciatic, it is appropriate to afford the Veteran another opportunity to appear for a VA examination. The Veteran should be notified of the consequences of her failure to report to a VA examination scheduled on her behalf, pursuant to 38 C.F.R. § 3.655. Finally, the Veteran seeks a TDIU based on her orthopedic disabilities. This claim is inextricably intertwined with the other remanded claims, and must be deferred pending the outcome of those claims. Since the claims file is being returned it should be updated to include any recent VA treatment records that are not of record. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all VA records pertaining to the Veteran not currently of record. 2. With appropriate authorization from the Veteran, obtain and associate with the claims file all pertinent private treatment records identified by the Veteran that have not already been obtained, including, but not limited to, all medical records from WVU regarding diagnosis of and treatment for her myotonic dystrophy. 3. Schedule the Veteran for a VA spine examination with a physician to determine the current nature and severity of the DDD of the lumbar spine at L5-S1. All indicated tests, including X-ray, magnetic resonance imaging (MRI) if indicated, and range of motion studies, must be conducted. The claims file must be made available to and reviewed by the examiner in conjunction with the examination. The examiner must opine as to whether it is possible to separate the symptoms associated with the recently diagnosed (2010) myotonic dystrophy from the symptoms initially associated with the service-connected DDD of the lumbar spine and associated sciatica. If it is possible to distinguish the myotonic dystrophy symptoms and manifestations from the service-connected disability manifestations, please clarify what symptoms are solely attributable to the service-connected DDD of the lumbar spine, and/or sciatica, and to what degree. The examiner should also indicate if the Veteran's low back disability is productive of incapacitating episodes as described in the rating schedule, and if so, determine the frequency of any incapacitating episodes in terms of the rating schedule. The examiner should provide an opinion as to the extent that pain limits the functional ability of the back in terms of additional functional limitation due to pain. The examiner should describe the extent the lumbar spine disability exhibits weakened movement, excess fatigability, incoordination, and/or ankylosis. These determinations should be expressed in terms of the degree of additional range of motion loss. The examiner should also portray the degree of additional range of motion loss due to pain on use or during flare-ups. The examiner should also determine whether the Veteran's service-connected sciatica is moderate, moderately severe, or severe. A complete rationale for all opinions proffered must be included in the report provided. 4. After completion of the above, schedule the Veteran for an examination by a VA psychiatrist or psychologist to determine what, if any, acquired psychiatric disorders are present, including, but not limited to generalized anxiety disorder. All indicated tests and studies are to be performed. Prior to the examination, the claims folder and a copy of this remand must be made available to the psychiatrist or psychologist for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. The examiner is asked to offer opinions as to the following: a. whether it is at least as likely as not that any acquired psychiatric disorder had its onset during service, or is otherwise related to her service. b. whether it is at least as likely as not that any currently diagnosed acquired psychiatric disorder is either caused or aggravated by the Veteran's service-connected disabilities. A review of the entire record is required; however, attention is invited to the private medical records from Dr. B from 2005 through 2008; VA mental health treatment records, and the other psychiatric records mentioned above; and the October 2006 VA compensation examination opinion appearing to suggest that the service-connected disabilities may be aggravating the Veteran's psychiatric symptoms. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The examiner must provide the underlying reasons for the opinions expressed. If it is determined that an opinion cannot be provided without resort to speculation, the examiner is asked to provide a complete rationale supporting why that is the case. 5. The Veteran must be given adequate notice of the date(s) and place(s) of any requested examination(s). A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on her claim. 6. After completing any additional necessary development, readjudicate the issues remaining on appeal. With regard to the increased rating claims in particular, readjudication must be undertaken with consideration that if it is not medically possible to distinguish which symptoms are associated with the Veteran's genetic disorder (myotonic dystrophy) and which symptoms are attributable to the service-connected DDD of the lumbar spine, then all symptoms must be attributed to the service-connected disability. If the disposition of any of the claims remains unfavorable, furnish the Veteran and her representative a supplemental statement of the case and afford the applicable opportunity to respond. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs