Citation Nr: 1319617 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 09-28 500 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for cervical myofascial pain syndrome, currently rated as 50 percent disabling for tension headaches, and as 10 percent disabling for limitation of motion of the cervical spine. 2. Entitlement to a compensable rating for left ear hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran served on active duty from February 1971 to June 1979 and from September 1984 to May 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which continued 0 percent ratings for cervical myofascial pain syndrome and left ear hearing loss. The claims file was subsequently transferred to the RO in St. Petersburg, Florida. The Veteran testified at a travel board hearing in February 2011. A transcript of the hearing has been associated with the claims file. The Board remanded these claims for additional development in August 2011. A February 2012 rating decision increased the disability rating for cervical myofasical pain syndrome, from 0 percent to 50 percent for tension headaches, effective November 29, 2007. A separate 10 percent rating for limitation of the cervical spine was also granted, effective November 29, 2007. However, as these grants do not represent total grants of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The Board notes that a claim for total disability based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the issue of entitlement to a TDIU rating has been raised by the record, as the Veteran has alleged that his left ear hearing loss prevents him from working as a medical professional, and the evidence also suggests that the Veteran's headaches are productive of severe economic inadaptability. However, the Veteran has already been in receipt of a combined 100 percent rating since July 13, 2010. Additionally, prior to July 13, 2010, he had still been employed. Therefore, the issue of entitlement to a TDIU is moot and not before the Board at this time. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. The Veteran's cervical myofascial pain syndrome has been manifested by very frequent completely prostrating and prolonged headaches productive of severe economic inadaptability. 2. The Veteran's cervical myofascial pain syndrome has been manifested by pain, with forward flexion limited to 40 degrees and combined range of motion limited to 230 degrees, without muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour; there are no objective findings of any associated neurological disability, and there have been no incapacitating episodes in the past 12 months. 3. The Veteran's left ear hearing loss was no worse than Level I hearing loss for all periods under consideration. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for the tension headaches aspect of the cervical myofascial pain syndrome have not been met. 38 U.S.C.A. §§ 1155, 5107, (West 2002 and Supp. 2012); 38 C.F.R. §§ 4.1-4 .7, 4.120, 4.124a, Diagnostic Code 8100, 4.129, 4.130 (2012). 2. The criteria for a rating in excess of 10 percent for the limitation of cervical spine motion of the cervical myofascial pain syndrome have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2012). 3. The criteria for a compensable rating for left ear hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.85, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to 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). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in a December 2007 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claims for a higher rating, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter also advised the Veteran of the necessity of providing medical or lay evidence demonstrating the level of disability and the effect that the disability has on his employment. The notice also provided examples of pertinent medical and lay evidence that the Veteran may submit (or ask the Secretary to obtain) relevant to establishing entitlement to a disability evaluation. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (VCAA notice in a claim for increased rating need not be "veteran specific"). The December 2007 letter further advised the Veteran of how effective dates are assigned, and the type of evidence which impacts those determinations. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA and private medical records, VA examination reports, and hearing testimony. The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c) (2) (2012) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ did not specifically note the bases of the prior determinations or the elements that were lacking to substantiate the Veteran's increased rating claims. The Veteran's representative asked specific questions, however, directed at identifying whether the Veteran had symptoms meeting the schedular criteria for a higher rating for cervical myofascial pain syndrome. Additionally, the VLJ specifically sought to identify pertinent evidence not currently associated with the claims. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, the Board notes that the VLJ did not ask any questions regarding the Veteran's left ear hearing loss, nor did the Veteran offer any testimony with respect to this issue. However, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claim for cervical myofascial pain syndrome, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that no further action pursuant to Bryant is necessary. Additionally, the prior remand instructions were substantially complied with. Instructions pertinent to the claims being decided included scheduling the Veteran for current VA examinations in which the VA examiners considered the orthopedic and neurological manifestations of the cervical myofascial pain syndrome, as well as the Veteran's statements regarding the impact of his hearing loss on his employment. In response, the RO/AMC scheduled the Veteran for VA spine/neurological and audiological examinations in September 2011 in which the examiners made all of the requested considerations. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument, including at a travel board hearing. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2012); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2012); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2012); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2012). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods based on the facts found - a practice known as "staged" ratings. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Cervical Myofascial Pain Syndrome The Veteran was originally rated for his disability under Diagnostic Code 5237-8100. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2012). Diagnostic Code 5237 pertains to cervical strain. Diagnostic Code 8100 pertains to migraine headaches. The Veteran currently has a 50 percent rating under Diagnostic Code 8100 for the tension headaches aspect of his cervical myofascial pain syndrome and a separate 10 percent rating under Diagnostic Code 5237 for the limitation of cervical spine motion aspect of his cervical myofascial pain syndrome. Regarding the tension headaches aspect of the Veteran's cervical myofascial pain syndrome, under Diagnostic Code 8100, a 10 percent rating is warranted for headaches manifested by characteristic prostrating attacks averaging one in two months over last several months. A 30 percent rating is warranted for characteristic prostrating attacks occurring on an average of once a month over the last several months. A maximum 50 percent rating is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012). With respect to the limitation of cervical motion aspect of the Veteran's cervical myofascial pain syndrome, disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 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 may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2012); see also 38 C.F.R. §§ 4.45, 4.59 (2012). 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 ratings will apply. A 10 percent evaluation requires evidence of forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation requires evidence of forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent evaluation requires evidence of forward flexion of the cervical spine to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent evaluation requires evidence of unfavorable ankylosis of the entire cervical spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2012). Any associated objective neurologic abnormalities should be evaluated separately, under an appropriate diagnostic code. Id. at Note 1. Private medical records dated from January 2007 to December 2007 show that the Veteran received intermittent Botox injections to treat his headaches. On VA examination in July 2008, the Veteran denied any physician-prescribed bed rest or incapacitation in the last 12 months. He was independent in his activities of daily living and denied any impediment to his usual occupation. The Veteran complained of right-sided spasms in the upper trapezius muscle, which caused him to have headaches, and would flare up following any straining or heavy lifting. He denied having any bowel or bladder dysfunction, paresthesias, dysthesias, weakness, fatigue, or functional loss. He reported being treated with Botox injections to his muscles every 4 to 7 months. He stated that if he did not take medication at night, he would experience a headache and associated spasms within 48 hours. However, if he continued on his medication, he would suffer less than one headache per month. The Veteran indicated that when he did experience a headache, it affected his ability to think, but he was not incapacitated and did not have any functional loss. Examination revealed normal, wide-based gait and posture. The Veteran was ambulatory without assistive devices. His neck was symmetric without gross deformities, scoliosis, kyphosis, lordosis, flattening, or visible spasm. Spinous processes were non-tender to palpate, and there were no palpate spasms or paravertebral tenderness. Repetitive range of motion testing showed 45 degrees flexion, 40 degrees extension, 45 degrees lateral flexion bilaterally, and 50 degrees lateral rotation bilaterally. There was pain on the extremes of range of motion. The examiner noted that there was no discomfort or difficulty with the range of motion testing, and additional limitation due to flare-ups could not be determined without resort to speculation. There was no evidence of effusion, edema, erythema, tenderness, palpable deformities, or instability. Neurologic examination indicated that deep tendon reflexes in the biceps and brachioradialis were 2+ bilaterally. There was no evidence of muscle atrophy, palpable spasms, or tenderness. Strength testing to gravity and resistance, sharp dull discrimination, and light touch were intact in the upper extremities bilaterally. The examiner reported no objective findings of radiculopathy. An x-ray of the cervical spine was unremarkable. The Veteran was diagnosed with cervical myofascial syndrome with associated tension headaches. In May 2009 private medical reports, the Veteran was noted to be treated with Botox for spasmodic torticollis that resulted in severe daily headaches and upper extremity dysfunction. A June 2010 VA medical report shows that the Veteran had chronic headaches, and that he was receiving Botox treatments for them. The Veteran testified at a travel board hearing in February 2011. Testimony revealed, in pertinent part, that the Veteran's headaches had both a migraine component as well as a musculoskeletal component. The Veteran testified that his headaches occurred every day and that he had only sought out further treatment when he could not focus on things because of his headaches. He reported that he could live with his headaches and had not missed any work due to his headaches. He stated that he received Botox injections every 4 to 7 months for his headaches. He indicated that during the period when the treatment wore off and he was waiting for the next appointment, he would sometimes have to lay down 2 to 3 times a week because of his headaches. He maintained that he would also use ice or Lidocaine patches on his forehead. On VA examination in September 2011, the Veteran reported that his neck mobility improved after his Botox injections, and he was then able to carry on his usual activities like walking to the mailbox, walking around the yard, using the riding lawnmower, and going out to eat. However, the Veteran complained that he was incapacitated during flare-ups. He stated that flare-ups of pain were a 9/10 in severity and lasted 2 to 3 days. He indicated that these flare-ups were temporarily relieved with medication until he received his scheduled Botox treatment every 4 to 7 months. Examination revealed stiffness when turning the head to the right side. There was no evidence of localized tenderness or pain to palpation or guarding or muscle spasm of the neck. The Veteran also used a cane for ambulation, but he was noted to need the cane for his back and knee conditions. There was no evidence of functional impairment of an extremity such that no effective function remained other that that which would be equally well-served by an amputation with prosthesis. An x-ray of the cervical spine indicated the presence of arthritis. Range of motion testing of the cervical spine showed 40 degrees flexion, extension, and bilateral lateral flexion; 65 degrees right lateral rotation, and 75 degrees left lateral rotation. There was painful motion on right lateral rotation only. Upon repetitive motion, there was additional limitation of right lateral rotation to 55 degrees. Neurologically, there was no muscle atrophy, and strength of the bilateral upper extremities was normal. Deep tendon reflexes of the biceps, triceps, and brachioradialis were normal bilaterally. Although the Veteran reported experiencing a tingling sensation to both hands during neck spasm flare-ups, sensory examination was normal. The examiner found that the Veteran had no radicular pain or any other signs or symptoms due to radiculopathy. Additionally, the Veteran had no other neurologic abnormalities related to his cervical spine condition. The examiner noted that the Veteran did have intervertebral disc syndrome of the cervical spine, but that he had not had any incapacitating episodes over the past 12 months. The Veteran was diagnosed with degenerative disc disease of the cervical spine at C4-C5. The examiner found that the Veteran's cervical spine condition impacted his ability to work because of his reports of incapacitation during flare-ups, but noted that the Veteran's neck mobility improved after his scheduled Botox injections, and he became able to carry on his usual activities. The examiner reported that the Veteran's incapacitation was due to his neck muscle spasms and not to his cervical spine disability. She also diagnosed the Veteran with cervical myofascial pain syndrome with tension headaches. She found that the Veteran had moderate functional limitation without his Botox injections and mild functional limitation post Botox injections. She also noted that the Veteran had recently reported incapacitation that had lasted for 3 weeks with severe limitation of range of motion of the neck and muscle spasms severe enough to result in abnormal gait. Regarding the Veteran's tension headaches, the examiner found that they were considered to be prostrating attacks that occurred intermittently without notice and were precipitated by neck muscle spasms. She also reported that the headaches were frequent, prolonged, completely prostrating, and productive of severe economic inadaptability. In an October 2011 VA addendum, the September 2011 VA examiner indicated that she had reviewed the Veteran's entire claims file. Regarding tension headaches, the Board notes that the Veteran is already in receipt of a 50 percent rating, which is the maximum rating under Diagnostic Code 8100. Therefore, he is not entitled to an increased rating for his cervical myofascial pain syndrome under the rating criteria for migraine headaches. See 38 C.F.R. § 4.124a, Diagnostic Code 8100. With respect to the Veteran's cervical spine disability, the objective findings of record do not reflect evidence of forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees or combined range of motion of the cervical spine to 170 degrees or less. 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2012). During the appeal period, the Veteran's forward flexion of the cervical spine was shown to be, at worst, 40 degrees, on VA examination in September 2011. His combined range of motion was shown to be, at worst, 230 degrees, on VA examination in July 2008. Although the September 2011 VA examiner noted that the Veteran had additional limitation of right lateral rotation to 55 degrees upon repetitive motion, this would only limit his combined range of motion to 290 degrees. Thus, even considering the Veteran's subjective complaints of pain, the medical evidence of record does not support any additional limitation of motion in response to repetitive motion that would support an evaluation in excess of the 10 percent assigned. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2012); see also 38 C.F.R. §§ 4.45, 4.59 (2012). The Board notes that a 20 percent rating is also warranted under Diagnostic Code 5237 for muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, Diagnostic Code 5237. On VA examination in September 2011, the Veteran was noted to have reported incapacitation that had lasted for 3 weeks with severe limitation of range of motion of the neck and muscle spasms severe enough to result in abnormal gait. However, the VA examiner found that the Veteran's incapacitation was due to his neck muscle spasms and not to his cervical spine disability. She explained that the Veteran's tension headaches were considered to be prostrating attacks that occurred intermittently without notice and were precipitated by neck muscle spasms. She concluded that the Veteran's headaches were frequent, prolonged, completely prostrating, and productive of severe economic inadaptability. Although the Veteran had reported experiencing muscle spasms that were severe enough to result in an abnormal gait, the evidence of record indicates that the muscle spasms were considered to be part of the Veteran's tension headache disability, as they triggered his headaches and caused his headaches to be prostrating. Since the Veteran's neck muscle spasms have already been considered under Diagnostic Code 8100 in rating his tension headaches, see 38 C.F.R. § 4.124a, Diagnostic Code 8100, they cannot also be considered under Diagnostic Code 5237 because that would result in pyramiding. The evaluation of the same disability or the same manifestations of disability under multiple diagnoses is to be avoided. 38 C.F.R. § 4.14 (2012). A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993); see also Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) ("two defined diagnoses constitute the same disability for purposes of section 4.14 if they have overlapping symptomatology"). The Veteran has not alleged that when his cervical pain occurred, he had to take time off work and be limited to bed rest. Indeed, at his July 2008 VA examination, he denied any physician-prescribed bed rest or incapacitation in the last 12 months. Moreover, although he was found to have intervertebral disc syndrome at his September 2011 VA examination, the Veteran did not have any incapacitating episodes of spine disease during the past 12 months. An "incapacitating episode" for purposes of Diagnostic Code 5243 is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Although the Veteran was found to have incapacitation due to his neck muscle spasms, he did not have any incapacitating episodes as defined under VA regulations. Further, as previously discussed, any incapacitation caused by the Veteran's neck muscle spasms was already considered under the diagnostic criteria for migraine headaches. Accordingly, evaluation of the Veteran's disability pursuant to Diagnostic Code 5243 based on incapacitating episodes is not warranted. See 38 C.F.R. § 4.71a. With regard to Note (1) of the General Rating Formula for Diseases and Injuries of the Spine, the Board acknowledges that the Veteran reported that he had a tingling sensation to both hands during neck spasm flare-ups at his September 2011 VA examination. However, the evidence shows that neurological examination was normal at both the July 2008 and September 2011 VA examinations. Specifically, the Veteran's cervical spine had no sensory or motor deficits, all deep tendon reflexes of the bilateral upper extremities were normal, and there were no signs of radiculopathy with nerve root involvement. Therefore, the Board finds that the medical evidence of record fails to show that the Veteran's cervical spine disability was productive of any objective neurological manifestations for all periods under consideration sufficient to warrant a separate rating. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2012). Left Ear Hearing Loss Evaluations of bilateral defective hearing range from non-compensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability from bilateral service-connected defective hearing, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100 (2012). If impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the ear that is nonservice-connected will be assigned a Roman Numeral I for purposes of rating the hearing impairment. 38 C.F.R. § 4.85(f). Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. In that situation, 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. 38 C.F.R. § 4.86(a) (2012). Further, when the average 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 will then be elevated to the next higher Roman numeral. Each ear will be considered separately. 38 C.F.R. § 4.86(b). In this case, the Veteran does not meet the criteria for an exceptional pattern of hearing impairment. The Veteran submitted a June 2006 report of private audiological consultation. However, this medical report did not contain the results of the Veteran's pure tone thresholds in decibels, nor did it contain the results of speech recognition testing performed with the Maryland CNC word list. Thus, as the June private evaluation was not conducted in accordance with VA standards, the findings are not suitable for rating purposes. See 38 C.F.R. § 4.85. The Veteran was afforded a VA audiological examination in July 2008. He reported that he had difficulty hearing and understanding conversation, particularly in the presence of background noise. An audiogram showed pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg. RIGHT 25 25 30 55 33.75 LEFT 30 30 50 60 42.5 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 96 percent in the left ear. The examiner's impression was that the Veteran had left sensorineural hearing loss. As the Veteran is nonservice-connected in the right ear, the right ear is assigned a designation of Level I hearing loss. See 38 C.F.R. § 4.85(f). Applying the results from the July 2008 VA examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level I hearing loss in the left ear. Where hearing loss is at Level I in one ear and Level I in the other, a 0 percent rating is assigned under Table VII. 38 C.F.R. § 4.85. In a June 2009 statement, the Veteran reported that his employment was in the field of nursing and that due to his hearing loss, he had to frequently request that physicians, co-workers, and patients repeat themselves. He indicated that he was no longer confident in his ability to discern breath sounds, heart sounds, and pulses during medical assessments. He maintained that his patients were usually sedated and would speak very softly or with slurred speech. He complained that he had been forced to stop working in the emergency department due to his fear that he would not hear a significant finding. The Veteran was afforded another VA audiological examination in September 2011. He reported that he was unable to understand words and sounds and that he had been issued hearing aids for both ears. The Veteran complained that when he had worked as a nurse, he had experienced a lot of difficulty in hearing pulses, breath sounds, and bowel sounds, and had also had trouble communicating with the patients and staff. An audiogram showed pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg. RIGHT 25 30 40 55 38 LEFT 35 40 60 70 51 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 92 percent in the left ear. The examiner's impression was that the Veteran had left sensorineural hearing loss. She reviewed the Veteran's entire claims file, including the Veteran's statements regarding the functional limitations of his left ear hearing loss. The examiner noted that the Veteran did demonstrate significant left ear hearing loss, but that he was currently receiving VA hearing aids for this impairment. She explained that while the Veteran was wearing his hearing aids, he should be able to effectively communicate in most quiet listening situations, as well as hear most environmental sounds. Therefore, the examiner concluded that when considering only the Veteran's left ear hearing loss without regard to his other nonservice-connected disabilities, the left ear hearing loss should not significantly impact the Veteran's ability to perform all types of physical or sedentary jobs to the degree as to render him unemployable. As the Veteran is nonservice-connected in the right ear, the right ear is assigned a designation of Level I hearing loss. See 38 C.F.R. § 4.85(f). Applying the results from the September 2011 VA examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level I hearing loss in the left ear. Where hearing loss is at Level I in one ear and Level I in the other, a 0 percent rating is assigned under Table VII. 38 C.F.R. § 4.85. The July 2008 and September 2011 VA examinations were conducted in accordance with 38 C.F.R. § 4.85(a) and are highly probative. The Board acknowledges that in Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007), the United States Court of Appeals for Veterans Claims (Court), noted that VA had revised its hearing examination worksheets to include the effect of the veteran's hearing loss disability on occupational functioning and daily activities. Although the July 2008 VA examiner included but did not discuss the reported functional effects of the Veteran's hearing loss, the September 2011 VA examiner's report both included and discussed the reported effects of the Veteran's hearing loss on his occupational functioning and daily activities. Additionally, the Veteran submitted a June 2009 lay statement in which he described some of the effects of his hearing on his occupational activities. Therefore, the Board finds that taken together, the July 2008 and September 2011 VA examinations are highly probative. Other Considerations The Board concludes that the medical findings on examinations are of greater probative value than the Veteran's allegations regarding the severity of his cervical myofascial pain syndrome and left ear hearing loss. The symptomatology noted in the medical and lay evidence has been adequately addressed by the evaluations assigned and do not more nearly approximate the criteria for higher evaluations at any time during all periods on appeal. See 38 C.F.R. §§ 4.71a, Diagnostic Code 5237, 4.85, Diagnostic Code 6100, 4.124a, Diagnostic Code 8100 (2012); see also Fenderson, supra. The Board has also considered whether the Veteran's cervical myofascial pain syndrome and left ear hearing loss present exceptional or unusual disability pictures as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extraschedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). 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. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology, and provide for higher ratings for additional or more severe symptomatology than is shown by the evidence. Regarding the cervical myofascial pain syndrome, the Veteran's 50 percent rating for tension headaches contemplated his subjective complaints as well as his functional impairment. The Veteran had neck muscle spasms that triggered frequent completely prostrating and prolonged headaches productive of severe economic inadaptability. Therefore, the Veteran's subjective complaints were included in the 50 percent rating for tension headaches. Additionally, the Veteran's 10 percent rating for limitation of motion of the cervical spine contemplated his subjective complaints of neck pain and tingling in the hands as well as his functional impairment. The Veteran had forward flexion limited to 40 degrees and combined range of motion limited to 230 degrees. He had no guarding severe enough to result in an abnormal gait or abnormal spinal contour, and although he had muscle spasm severe enough to result in abnormal gait, this was already considered in his 50 percent rating for tension headaches. Despite the Veteran's report of tingling in the hands, there were no objective findings of any associated neurological disability. Additionally, while the Veteran had intervertebral disc syndrome, he had not had any incapacitating episodes in the past 12 months. Therefore, the Veteran's subjective complaints were included in the 10 percent rating for limitation of motion of the cervical spine. With respect to the left ear hearing loss, the Veteran's 0 percent rating contemplated his subjective complaints of difficulty hearing conversation in the presence of background noise, difficulty hearing biological sounds in the context of working in the medical profession, and difficulty communicating with the staff and patients at work, as well as his functional impairment. The evidence showed that the Veteran's hearing aids would enable him to effectively communicate in most quiet listening situations, as well as hear most environmental sounds, and his left ear hearing loss would thus not render him unemployable. Therefore, the Veteran's subjective complaints were included in the 0 percent rating. Thus, the evidence shows that the Veteran's disability pictures are contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER A rating in excess of 50 percent for the tension headaches aspect of cervical myofascial pain syndrome, and a rating in excess of 10 percent for the limitation of cervical motion aspect of cervical myofascial pain syndrome, is denied. A compensable rating for left ear hearing loss is denied. ____________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs