Citation Nr: 1319753 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 11-06 651 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for a disability of the thoracolumbar spine (variously classified as degenerative joint disease (DJD) and as spondylosis deformans of the thoracolumbar spine, T12-L1). 2. Evaluation of bilateral hearing loss., 3. Entitlement to a rating in excess of 10 percent for residuals of rib fractures. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had verified active service from May 1958 to November 1953, and from November 1954 until he medically retired due to physical disability in November 1969. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2010 rating decision. The Veteran timely perfected an appeal to the Board. That rating decision, inter alia, confirmed and continued a noncompensable rating for residuals of fractured ribs, and reduced a 20 percent rating for bilateral hearing loss to 10 percent, effective February 10, 2010 (the date of VA examination). In that decision, the RO also reopened a previously denied claim, and granted service connection for residuals of a back strain, diagnosed as spondylosis deformans of the lumbosacral spine at L2 and L5-S1, which was assigned an initial 40 percent rating, effective November 25, 2009 (the date of receipt of the application to reopen the claim for service connection for a back disorder). However, service connection was denied for JD of the thoracolumbar spine, T12-L1 (subsequently classified in the February 2011 Statement of the Case (SOC) as spondylosis deformans of the thoracolumbar spine, T12-L1. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal, except as otherwise stated herein. In May 2010, the Veteran filed a notice of disagreement. An SOC was issued in February 2011. The Veteran filed a substantive appeal (via a VA Form 9 Appeal to the Board of Veterans' Appeals) in March 2011, in which he requested a Board video-hearing conference In a January 2011 rating decision, the RO, inter alia, granted a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) and basic eligibility to Dependents' Educational Assistance (DEA) benefits, both from November 25, 2009. In a February 2011 rating decision, the RO assigned a 10 percent rating for residuals of rib fractures, effective November 25, 2009 (the date of receipt of the claim). In April 2013, the Veteran was scheduled to testify during a Board video-conference hearing before a Veterans Law Judge (VLJ) but, without requesting a postponement, he failed without good cause to appear. Without good cause shown for the failure to appear, the request for the video-conference is deemed withdrawn. 38 C.F.R. § 20.704(d) (2012). In May 2013 a Deputy Vice Chairman of the Board granted the Veteran's motion to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2012). The Board's decision on the claim for a higher rating for residuals of rib fractures is set forth below. The request to reopen a claim for service connection for disability of the thoracolumbar spine (variously classified as DJD and as spondylosis deformans of the thoracolumbar spine, T12-L1), and the claim involving evaluation of bilateral hearing loss (recharacterized, as discussed below) are addressed in the remand following the order; these matters are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. The Board notes that, in the April 2013 Informal Hearing Presentation, the Veteran's service representative addressed the matter of the 40 percent rating assigned for the Veteran's service-connected residuals of a back strain, diagnosed as spondylosis deformans of the lumbosacral spine, at L2 and L5-S1. However, as this matter has not been addressed by the RO, it is not properly before the Board, and is referred to the RO for appropriate action. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided has been accomplished. 2. The Veteran's rib fractures are now well healed without rib removal or radiographic evidence of rib resection or any bony deformity, and the residuals consist of impaired motion of the trunk and pain upon deep inspiration and physical exertion; but, such manifestations are not of such severity as to approximate disability comparable to resection of at least two ribs (if rated by analogy). CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for residuals of rib fractures are not met. 38 U.S.C.A. §§ 1151, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b)(1), 4.1-4.7, 4.20, 4.21, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5299 - 5297 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Due Process Considerations VA has a duty to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, et seq (effective November 9, 2000) (Veteran Claims Assistance Act of 2000 (VCAA)); see also 38 C.F.R. §§ 3.102, 3.156(a), 3.159. This notice was intended to be provided prior to an initial adjudication of a claim. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (Pelegrini II). By letter dated in December 2009, prior to the initial adjudication of the claim, the RO advised the Veteran of the evidence needed for claim substantiation. 38 U.S.C.A. § 5103(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). For a claim, as here, pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 was amended to eliminate the requirement that VA also request that the submission of evidence in the claimant's possession that might help in claim substantiation. See 73 Fed.Reg. 23353 (Apr. 30, 2008). The December 2009 RO letter explained what evidence VA would obtain or assist in obtaining and what information or evidence the claimant was responsible for providing. 38 U.S.C.A. § 5103(a). In a claim for increase, the VCAA notice requirements include notice to provide, or ask VA to obtain, medical or lay evidence of increased severity and the impact thereof on employment to substantiate the claim; and providing examples of types of medical or lay evidence that may be submitted, or that VA can be asked to obtain, which are relevant to establishing an increased rating. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), affirmed in part by Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Here, by the December 2009 RO letter to the Veteran the RO complied with the holding in Vazquez-Flores, Id. An error in not providing preadjudication notice (timing-of-notice error) can be cured by notification followed by readjudication. Mayfield v. Nicholson, 20 Vet. App. 537, 541-42 (2006); affirmed Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (an SSOC is a readjudication); see also Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006). In this case, the required notice was provided prior to, as at the time of, readjudication of the claim in the February 2011 Statement of the Case (SOC) and the September 2012 Supplemental SOC. As for the duty to assist, the RO obtained the Veteran's service treatment records (STRs), VA treatment records, and private clinical records. Also of record and considered in connection with the appeal are various written statements provided by the Veteran, and by his representative, on his behalf. Further, the Veteran was provided an opportunity to testify in support of his claim but failed to attend a scheduled video-conference hearing for that purpose. Additionally, in March 2009 the Veteran was provided, at his request, a complete copy of his claim files. In March 2010 he was provided, at his request, copies of the reports of VA examinations in January 2010. The Veteran has been provided multiple examinations, the reports of which are of record. As to this, the adequacy of those VA examinations has not been challenged. The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the appellant's claims called Virtual VA, in which some of the Veteran's medical records have been associated. Therefore, as there is no indication or allegation that other relevant evidence remains outstanding, the Board finds that the duty to assist has been met. 38 U.S.C.A. § 5103A. Background The STRs show that the Veteran sustained multiple injuries, including rib fractures, in a 1965 motor vehicular accident (MVA).. Chest X-rays on VA examination in 1970 revealed the Veteran's lung fields were clear, and there was nothing unusual about the costophrenic angle and the bones of the thorax. A chest X-ray on VA examination in 1975 revealed the Veteran's lungs were clear. The X-ray report noted that he had had restricted movement of the right shoulder and the examination reported noted that his right shoulder problems had begun about 2 years earlier, gradually increasing in severity. After an examination the pertinent diagnosis was arthralgia of the right shoulder with some limited motion. Records of treatment in the 1990s's at a military medical facility include reports of chest X-rays in February and November 1992, as well as November 1995, which revealed no rib abnormality and also that the Veteran's lung fields were clear. On VA examination in 1997, it was noted that the Veteran used a wheelchair when shopping due to constant bilateral knee pain. An October 2005 VA chest X-ray revealed no evident osseous rib changes. X-rays in January 2006 revealed bilateral knee prostheses and possible early degenerative arthritis changes in the left acromioclavicular joint but the right shoulder joint was intact. On VA examination in December 2005, the Veteran complained of low back pain radiating to the anterior abdominal area. The diagnostic summary included no evidence of fractured ribs. On VA examination in January 2006 the Veteran reported that he had developed episodic right shoulder pain beginning in the 1980s playing baseball (pitching) which became worse in 2002 to the that he could not raise his right arm, and had involvement of the left arm as well. A March 2008 VA outpatient treatment (VAOPT) record shows that the Veteran had finished one set of anti-biotic treatment for bronchitis and had begun his second set yesterday, having been placed on steroids and using a nebulizer. It was indicated that he might have asthma. He reported that he had a productive cough but no chest pain. A November 2008 statement from Dr. E. T. reflects that the Veteran had a 3 day history of nasal discharge, productive cough, body malaise, and fever. He was admitted in August 2006 for an upper respiratory infection (URI), sinusitis and bronchitis, and started on anti-biotics. He was given anti-histamine for allergic rhinitis. Upon improving, he was discharged. He was treated again in March and May 2007 for these problems, and again in September 2008. On VA examination in September 2010 for sinusitis, it was noted that, in 1963, the Veteran had had a left Caldwell Luc procedure for biopsy of a maxillary polyp and nasopharyngeal mass. Possible symptoms of chronic sinusitis included infections and build-up of thick yellowish or greenish discharge and other symptoms of infection. On examination again later that month it was noted that the Veteran had 60 percent left nasal obstruction and 50 percent right nasal obstruction. It was reported that he had constant breathing difficulty. On VA examination in November 2010 for aid and attendance, it was reported that due to the Veteran's service-connected rib fractures he could not over-exert himself or breath hard because such caused pain. He had pain when laughing and sneezing and even deep inspiration caused pain. In a November 2010 rating decision, the RO reopened a claim for service connection for sinusitis and, upon de novo review, granted service connection for sinusitis which was assigned an initial 30 percent disability rating. In that rating decision, the RO also granted service connection for allergic rhinitis with pharyngitis, which was assigned an initial noncompensable rating. In a February 2011 rating decision, the RO awarded a 10 percent rating for residuals of rib fractures, effective November 12, 2009 (date of claim). A private chest X-ray in July 2011 revealed nodular densities in both inner lung fields likely due to "end-on pulmonary vessels." Haziness in the left lower lung was probably due to overlying chest wall soft tissue. The rest of the visualized lungs were clear. The bony thorax was intact. On VA examination for aid and attendance in March 2012, it was reported that the residuals of rib fractures caused pain upon deep breathing. The Veteran also reported having tenderness with rotation of his upper body. On examination he had pain on movement of the upper and middle portions of the back which interfered with breathing. Also, he described having pain upon palpation of the lateral rib cage, on both sides. The pertinent diagnosis was rib pain. In March 2012, the Veteran reported that due to his bronchitis he was very uncomfortable upon trying to breathe when his lungs were inflamed due to bronchitis. On VA orthopedic examination in April 2012, the Veteran reported that "until now" the pain in his ribs was worsening. X-rays revealed no definite evidence of fracture of the ribs on either side of the chest. The pertinent diagnosis was residual healed fracture of the ribs. It was stated that the fractures had caused pain in the affected joints. In the case of the ribs, this caused pain on deep breathing. The examiner stated that although there was no evidence of an "active rib fracture" the Veteran reported that he had chest pain which made it difficult for him to get up. Rating Principles Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, separate ratings may also be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When an unlisted condition is encountered, it will be permissible to rate the condition under a closely related disease or injury by the use of a "built-up" DC under 38 C.F.R. § 4.27, in which not only the functions affected but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. Here, the Schedule for Rating Disabilities does not have a specific DC for residuals of a fracture or fractures of one or more ribs. The RO previously rated the disability as analogous to benign new growths of bone, under 38 C.F.R. § 4.71a, DC 5015. Other than gout (which is not at issue herein), the diseases under DCs 5013 through 5024 are to be rated on the basis of limitation of motion of an affected part, as degenerative arthritis. Diagnostic Code 5015 provides that benign new growths of bones is to be rated on limitation of motion of affected parts as degenerative arthritis under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5015. Diagnostic Code 5003 in turn provides that degenerative arthritis established by X-ray findings will be evaluated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See Deluca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. However, upon assigning a 10 percent rating by the March 2010 which is appealed, the RO analogously used DC 5297, removal of a rib. Under DC 5297, resection of one or more ribs, without regeneration, warrants a 10 percent rating. For the next higher rating of 20 percent there must be resection of two ribs. Note 1 to DC 5297 provides that the rating for rib resection or removal is not to be applied with ratings for purulent pleurisy, lobectomy, pneumonectomy or injuries of pleural cavity. Note 2 to DC 5297 provides that rib resection will be considered as rib removal in thoracoplasty performed for collapse therapy or to accomplish obliteration of space and will be combined with the rating for lung collapse, or with the rating for lobectomy, pneumonectomy or the graduated ratings for pulmonary tuberculosis. Analysis In evaluating this claim, the Board has carefully considered the Veteran's contentions with respect to the nature of his service-connected disability and notes that he is competent to describe certain symptoms associated with the disability. The Veteran's history and symptom reports have been considered, including as presented in the medical evidence discussed above, and has been contemplated by the disability rating assigned. Moreover, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of the service-connected disability at issue. As such, while the Board accepts the lay statements with regard to the matters he is competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the service-connected rib fractures. Here, because the evidence shows that there is no active process involving the rib fractures (unlike in cases of arthritis), and no pathology of the Veteran's lungs, the residual disability from the rib fractures is most appropriately rated on the basis of DC 5297 on the basis of musculoskeletal dysfunction. Upon consideration of the collective evidence, the Board concludes that a rating in excess of 10 percent is not warranted for the service connection rib fracture residuals at any time pertinent to the current claim for increase First, although the Veteran has a history of multiple rib fractures, the evidence does not suggest that any rib has been removed or even partially resected. Thus, a higher initial rating is not warranted under the strict schedular Diagnostic Code 5297 for rib removal. However, consideration must be given to the overall impairment, particularly since the rib fractures disability is rated analogously under DC 5297. The evidence shows that the Veteran's rib fractures have been manifested by chest wall pain, particularly upon exertion, and pain upon deep inspiration, but it does not show that the rib fractures affects any nearby major joint, such as the right or left shoulders. While the Veteran does not have right shoulder disability; by his own admission this began years after service and he has not related it to his rib fractures. Likewise, the evidence does not show that any disability due to arthritis of the left shoulder is related to, for rating purposes, the rib fracture residuals. However, the VA examinations show that the chest wall area is affected, since he has tenderness in that area and some impaired mobility. As to the impaired mobility, the Veteran experiences pain, particularly on movement that involves the trunk. Thus, with consideration of the functional effects of painful motion, a 10 percent rating would be appropriate under either DC 5015 when rated as analogous to arthritis, or DC 5297 when rated as analogous to rib removal or resection. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a (Diagnostic Codes 5003, 5015); Mitchell, 25 Vet. App. at 38-43; DeLuca, 8 Vet. App. at 204-7. Although a 10 percent rating is warranted for painful motion, an even higher initial rating is not warranted because the evidence does not show that there are other manifestations of the disability for which a higher or separate rating is warranted. As noted previously, there has been no rib removal and no other joint has been affected. Moreover, the evidence does not suggest that there is a muscle injury or injury of a nerve of the chest that would warrant a separate rating. See, e.g., 38 C.F.R. § 7.73 (Diagnostic Code 5320) (pertaining to the muscle group for the function of respiration). VA examinations show that there is no muscle atrophy or problems with respiration other than the symptom of pain, which is already contemplated by the 10 percent rating. The March 2012 examination revealed that there was movement of the Veteran's back which reportedly interfered with breathing; however, the diagnosis was only that there was rib pain and there was no diagnosis of any actual respiratory impairment. Also, on VA examination in April 2012 the Veteran complained of pain on deep inspiration but the examiner found that there was no "active" rib fracture and his pain made it difficult to arise but there was no finding that there was any actual interference with respiration. Thus, the dysfunction is solely musculoskeletal in nature. As to this, the Veteran also has nonservice-connected bronchitis which by his own admission causes difficulty breathing and there is nothing which remotely suggests that the bronchitis is related in any way to the service-connected rib fracture residuals. To the extent that his service-connected sinusitis and service-connected rhinitis interfere with respiration, these disabilities are separately rated, although the later is noncompensable, and to assigned an increase in the evaluation for the rib fractures based on respiratory impairment from either the sinusitis or rhinitis would be pyramiding, which is prohibited. See 38 C.F.R. § 4.14. Thus, a schedular rating higher than 10 percent for the service-connected rib fractures is not warranted at any time during the relevant time period of this appeal. Hart, supra. Therefore, as the symptoms from the Veteran's rib fractures have been stable throughout the appeal period, assigning staged ratings is not warranted. Id. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008) the United States Court of Appeals for Veterans Claims (Court) explained how the provisions of 38 C.F.R. § 3.321(b)(1) are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that 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. Under the approach prescribed by VA, 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. Second, 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 "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected rib fractures with the established criteria found in the rating schedule, and finds that the applicable criteria are adequate to evaluate the disability at all points pertinent to this appeal . The Veteran's primary complaints and symptoms of the rib fractures are of pain, particularly upon chest wall motion and deep inspiration, which are encompassed in the current 10 percent rating assigned. Specifically, the rating criteria for the rib fractures contemplate the impairment from the symptoms of which he complains. Although the Veteran does complained of pain on deep inspiration, there is no competent evidence that he has any actual impairment of respiratory function. Rather, the disability is essentially musculoskeletal in nature. The governing rating criteria for musculoskeletal disabilities encompass a wide range of signs and symptoms and the service-connected disorder require application of the holding in Deluca, supra, and Mitchell, supra, which, in turn, requires the application of 38 C.F.R. §§ 4.40, 4.45, 4.59. 38 C.F.R. § 4.40 requires consideration of functional loss, including the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, pain, weakness, and atrophy. Likewise, 38 C.F.R. § 4.45 requires consideration of, in part, incoordination, impaired ability to execute skilled movements, painful motion, swelling, deformity, disuse atrophy, instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing. Also, 38 C.F.R. § 4.59 requires consideration of such matters as unstable or mal-aligned joints, and crepitation as well as any painful arthritic motion. Therefore, the Board finds that the Veteran's impairment due to rib fractures is fully addressed by the rating criteria under which his disability is analogously rated. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, the Board notes, that, in certain circumstances, the Veteran's entitlement to a total disability rating based TDIU may be considered a component of a claim for higher rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). A TDIU may be granted where a Veteran's service connected disability(ies) is/are rated less than total, but it/they prevent him from obtaining or maintaining gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2012). Here, however, the Veteran has already been awarded A TDIU from November 25, 2009. As such, the Board need not address whether a TDIU claim, pursuant to Rice, has been raised in connection with the claim for higher rating currently on appeal. For all the foregoing reasons, the Board concludes that the claim for a higher rating for residuals of rib fractures must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a rating in excess of 10 percent, on any basis, at any point pertinent to this appeal, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER A rating in excess of 10 percent for residuals of rib fractures is denied. REMAND Unfortunately, the Board's review of the claims file reveals that further action in this appeal is warranted, even such will, regrettably, further delay an appellate decision on the matters remaining on appeal. Pertinent to both claims, the Board notes, historically, that in a September 2008 rating decision, the RO declined to reopen a claim for service connection for residuals of a back strain. In that rating decision, the RO also granted service connection for bilateral hearing loss and assigned an initial 20 percent disability rating, effective January 18, 2008. Although notified of that rating decision by RO letter of October 2008, the Veteran did not appeal that decision. Another application to reopen a claim for service connection for a back disorder was received on November 25, 2009. At that time, the Veteran's service representative acknowledged that the Veteran had missed his deadline to appeal the September2008 rating decision. Private medical evidence was submitted with the application to reopen. Following VA examination in February 2010, in the March 2010 rating decision on appeal, the RO reopened the claim, granting service connection for residuals of a back strain, diagnosed as spondylosis deformans of the lumbosacral spine at L2 and L5-S1, and assigning an initial 40 percent rating, effective November 25, 2009 (date of receipt of the application to reopen). However, service connection was denied for a thoracolumbar spine condition, diagnosed as thoracolumbar DJD, T12-L1. Subsequently, the February 2011 SOC described the disability as spondylosis deformans of the thoracolumbar spine, T-12-L1. The United States Court of Appeals for Veterans Claims (Court has held that the Veterans Claims Assistance Act of 2000 (VCAA) requires, with respect to requests to reopen previously denied claims, that a claimant must be notified of both the criteria to reopen a claim for service connection-to include a discussion of the basis/es for the prior denial-as well as the criteria for establishing the underlying claim for service connection. See Kent v. Nicholson, 20 Vet. App. 1 (2006). In this appeal, the appellant was provided notice of the general requirements for service connection in a December 2009 notice letter. Regrettably, however, in the December 2009 letter, the RO did not inform the Veteran of the reasons for the prior denial in September 2008. As the appellant was thus not informed as to the evidence needed to reopen the claim, the Kent notice is found to be inadequate. Hence, a remand of this matter is required. In this regard, the Board emphasizes that action by the RO (here, via the AMC) is needed to satisfy the notice provisions of the VCAA. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). As for bilateral hearing loss, the Board notes that, following the unappealed September 2008 rating decision granting service connection and assigning an initial 20 percent rating for bilateral hearing loss, effective January 18, 2008 (the date of receipt of the application to reopen), in the March 2010 rating decision on appeal, the RO, inter alia, reduced the rating for bilateral hearing loss to 10 percent, effective February 10, 2010 (date of VA examination). Thus, that 20 percent rating had been in effect for less than five (5) years. See 38 C.F.R. § 3.344 (2012). In the May 2010 Notice of Disagreement (NOD,) it was alleged that the VA audiology examination, including audiometric testing, in February 2010 was conducted within two years of the June 2008 VA audiology evaluation, which included audiometric testing, and that new VA directives favored a 5-year re-examination. See 38 C.F.R. § 3.344 (2012). While, in the February 2011 SOC, the RO found that continuation of a 20 percent rating was not warranted, and that a 10 percent rating had properly been assigned as of the February 10, 2010 VA examination, a rating decision issued in conjunction with the SOC indicated that a 20 percent rating for bilateral hearing loss remained in effect since January 18, 2010, as did subsequent rating decisions in February 2011 and September 2012. This matter was pointed out by the service representative in the April 2013 Informal Hearing Presentation and it was requested that this matter be clarified by the Board before addressing the matter of the appropriate rating on the merits. The Board agrees that this matter requires clarification. Also, to ensure that the record reflects the current severity of the Veteran's bilateral hearing loss, the Board finds that a more contemporaneous examination is needed..See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). After records and/or responses for each contacted are associated with the claims file, the Veteran should be afforded a VA examination for the purpose of determining the severity of the service-connected bilateral hearing loss. See 38 C.F.R. § 3.327 (a reexamination will be requested whenever there is a need to verify the current severity of a disability). The examiner should include comments as to the functional effects of the Veteran's hearing loss on occupational ability and his daily life. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). In this regard, "[t]he Secretary [of VA], in an internal guidance document ... reaffirmed the need for VA audiologists to describe the effect of a hearing disability on a claimant's occupational functioning and daily activities." Martinak, 21 Vet. App. at 455 (2007). The Veteran is hereby advised that failure to report for the scheduled examination, without good cause, may well result in denial of the claim involving evaluation of bilateral hearing loss. 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the Veteran fails to report for the scheduled examination, the RO must obtain and associate with the claims file (a) copies of any notice of the date and time of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo examination, the RO should, through VCAA-compliant notice sent to him and his representative, give the Veteran him another opportunity to present information and/or evidence pertinent to the mattes remaining on appeal, explaining that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). In its letter, the RO must provide to the appellant a specifically tailored notice letter explaining what is needed to reopen his claim for service connection for disability of the thoracolumbar spine, T-12-L1, including DJD and spondylosis deformans-to include identification of the specific reason(s) for the RO's denial in September 2008-consistent with the VCAA and Kent. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the duties imposed by the VCAA. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA (to include obtaining any further opinion, if appropriate) prior to adjudicating the claims remaining on appeal. Accordingly, these matters are hereby REMANDED for the following action: 1. Through VCAA-compliant notice sent to the appellant and his representative, give the appellant another opportunity to provide information and, if necessary, authorization, to enable VA to obtain any additional records pertaining to the matters on appeal that are not currently of record. Explain what type of evidence is needed to reopen the claim for service connection for a disability of the thoracolumbar spine (variously classified as DJD and as spondylosis deformans of the thoracolumbar spine, T12-L1), providing notice as to the reason for the RO's September 2008 prior denial of the claim, and specifically and precisely addressing the element(s) required to establish service connection that was/were found insufficient in the previous denial of the claim, as required by Kent (cited above). Clearly explain to the appellant that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. Assist the Veteran in obtaining any additional evidence identified following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses should be associated with the claims files. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe any further actions(s) to be taken. The records obtained should be associated with the claims files. 3. After all records and/or responses from each contacted entity have been associated with the claims file, or, a reasonable time period for the Veteran's response has expired, arrange for the Veteran to undergo VA examination, by an appropriate professional at a VA medical facility, for evaluation of his bilateral hearing loss. If needed, the claims file should be made available. All appropriate test and studies-in particular, audiometry and speech discrimination testing-should be accomplished, with all results made available to the examiner prior to the completion of his or her report. The examiner should provide numeric interpretation of any hearing tests/audiograms conducted. The audiologist should also set forth numeric values for each of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz; and then provide the average pure tone threshold for these four frequencies. The reported numeric values and speech recognition scores (Maryland CNC test) must be in conformity with the requirements of 38 C.F.R. § 4.85. The examiner should fully describe the functional effects of the Veteran's hearing loss has on his ability to work and his daily life. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 5. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to the Veteran by the pertinent VA medical facility. 6. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claims on appeal on appeal in light of all pertinent evidence (particularly, that added to the claims files since the last adjudication of the claims) and legal authority. With respect to evaluation of bilateral hearing loss, the RO should clarify whether the 20 percent rating for bilateral hearing was restored, as suggested by rating decisions subsequent to the SOC. 8. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish a further adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). The RO is reminded that this appeal has been advanced on the Board's docket. ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs