Citation Nr: 1320346 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 09-00 271 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for left ear hearing loss disorder. 2. Entitlement to an initial evaluation in excess of 10 percent for service-connected degenerative disc disease of the thoracolumbar spine. 3. Entitlement to service connection for a right ankle disorder. 4. Entitlement to a total evaluation based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran served on active duty from January 1986 to May 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which, among other things, denied the Veteran's claims for service connection for bilateral hearing loss and for a bilateral ankle disorder, and granted his claim for service connection for degenerative disc disease of the thoracolumbar spine and assigned a 10 percent evaluation, effective June 1, 2007. In a May 2008 statement, the Veteran expressed disagreement with the denial of the service connection claims enumerated above and the evaluation assigned for his service-connected degenerative disc disease of the thoracolumbar spine. In a November 2008 statement of the case (SOC), the RO continued the denial of these claims. The Veteran perfected a substantive appeal as to these issues in December 2008. In a July 2009 rating decision, the RO granted the Veteran's claim of entitlement to service connection for left ankle disorder. The Veteran has not disagreed with the assigned evaluation or effective date. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). Therefore, the matter has been resolved and is no longer in appellate status. As such, the issue of entitlement to service connection for bilateral ankle disorder has been recharacterized on the title page as entitlement to service connection for right ankle disorder. The Veteran testified before the undersigned Veterans Law Judge in March 2011. A transcript of this proceeding is associated with the claims file. In a September 2011 decision, the Board determined that the issue of entitlement to a TDIU had been reasonably raised by the record, and found such issue part and parcel to the Veteran's claim for an initial increased rating for degenerative disc disease of the thoracolumbar spine. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of Rice, the Board determined that it had jurisdiction of the issue; hence, such issue was added to the present appeal, as listed above. See Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In the aforementioned September 2011 decision, the Board remanded the issues noted on the title page for additional development. However, as there has not been substantial compliance with the remand directives pertaining to the issue of entitlement to a TDIU, the issue must be remanded again. Stegall v. West, 11 Vet. App. 268 (1998). In a June 2012 rating decision, the RO granted the Veteran's claim of entitlement to service connection for right ear hearing loss disorder. The Veteran has not disagreed with the assigned evaluation or effective date. See Grantham, 114 F.3d 1156 (Fed. Cir. 1997). Therefore, the matter has been resolved and is no longer in appellate status. As such, the issue of entitlement to service connection for bilateral hearing loss disorder has been recharacterized on the title page as entitlement to service connection for left ear hearing loss disorder. The record before the Board consists of the paper claims files and an electronic file known as Virtual VA. The issues of entitlement to service connection for a right ankle disorder and entitlement to 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 is not currently shown to have a left ear hearing loss disorder for VA compensation purposes. 2. The Veteran's degenerative disc disease of the thoracolumbar spine is manifested by forward flexion of the thoracolumbar spine to 50 degrees; there is no evidence of ankylosis or incapacitating episodes. CONCLUSIONS OF LAW 1. The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012). 2. The criteria for an initial disability rating of 20 percent, but no more, for degenerative disc disease of the thoracolumbar spine have been met. 38 U.S.C.A. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5242, 5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b) (2012); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Regarding the Veteran's claim of entitlement to service connection for left ear hearing loss, the duty to notify was satisfied by a letter sent to the Veteran in November 2007. The letter addressed all of the notice elements and was sent prior to the initial unfavorable decision by the agency of original jurisdiction in April 2008. Regarding the Veteran's claim of entitlement to an initial evaluation in excess of 10 percent for service-connected degenerative disc disease of the thoracolumbar spine, 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 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 473; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The veteran bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008). That burden has not been met in this case. Nevertheless, the record reflects that the Veteran was provided a meaningful opportunity to participate effectively in the processing of his claim such that the notice error did not affect the essential fairness of the adjudication now on appeal. The Veteran was notified that his claim was awarded with an effective date of June 1, 2007, the day following separation from service, and a 10 percent rating was assigned. He was provided notice how to appeal that decision, and he did so. He was provided a statement of the case that advised him of the applicable law and criteria required for a higher rating and he demonstrated his actual knowledge of what was required to substantiate a higher rating in his argument included on his Substantive Appeal. Further, he was provided pre-adjudicatory notice that he would be assigned an effective date in accordance with the facts found as required by Dingess. Moreover, the record shows that the Veteran was represented by a Veteran's Service Organization and its counsel throughout the adjudication of the claim. Overton v. Nicholson, 20 Vet. App. 427 (2006). Thus, based on the record as a whole, the Board finds that a reasonable person would have understood from the information that VA provided to the Veteran what was necessary to substantiate his claim, and as such, that he had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication was not affected. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The duty to assist was also met in this case. The service treatment records are in the claims file. All pertinent VA and private treatment records have been obtained and associated with the file. VA audiological examinations and opinions with respect to the issue of entitlement to service connection for left ear hearing loss were obtained in December 2007 and February 2012. 38 C.F.R. § 3.159(c) (4). Regarding VA examinations in connection with the Veteran's claim for an initial increased rating for his thoracolumbar spine disorder, the record reflects that the Veteran underwent three examinations in December 2007, July 2009, and February 2012. Id. In this regard, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). These examination reports are adequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that "once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, . . . he must provide an adequate one"). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the aforementioned issues on appeal has been met. 38 C.F.R. § 3.159(c) (4). Therefore, 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. Service Connection Legal Criteria Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (2012). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). In order to establish direct service connection for a disability or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when 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. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Additionally, service connection for certain diseases, including organic diseases of the nervous system such as sensorineural hearing loss, may also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a), 3.309(a) (2012). A hearing impairment is considered to be a disability when the auditory threshold level in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 CFR § 3.385 (2012). The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted. Regulation 38 C.F.R. § 3.385 does not prevent a claimant from establishing service connection on the basis of post-service evidence of hearing loss related to service when there were no audiometric scores reported at separation from service. Ledford v. Derwinski, 3 Vet App. 87, 89 (1992). The regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service. Thus, a claimant who seeks to establish service connection for a current hearing disability must show that a current disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record including that pertinent to service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303 and 3.304 (2012); Hensley v. Brown, 5 Vet. App. 155 (1993). Left Ear The Veteran contends that his current left ear hearing loss disorder is a result of acoustic trauma during service. In this regard, during the March 2011 hearing before the Board, he testified that he was exposed to excessive noise from jet engines during service. The Veteran's DD Form 214 shows that he served as a tactical aircraft maintenance craftsman. The Veteran believes that his hearing was initially damaged during service and continued to worsen subsequently. The Veteran's May 1985 induction physical examination report is negative for complaints, treatment, or diagnosis of hearing loss. Service treatment records include an August 1995 hearing conservation examination report which shows that Veteran was deemed "stable." A June 1996 record shows the Veteran was given ear plugs and muffs due to his exposure to hazardous noise as a result of extensive work on a flight line. A May 1997 periodic examination report indicates a diagnosis of bilateral high frequency sensorineural hearing loss at 6000 Hertz. A January 2001 hearing conservation report shows a threshold shift (worsening) of the left ear at 3000 Hertz and 4000 Hertz in comparison to a November 1990 audiogram; a notation indicates that the Veteran was aware of his change in hearing. A January 2001 memorandum from VA to the Veteran notes a significant permanent hearing loss shown by audiological testing dated in January 2001 compared to an unspecified "reference audiogram." A September 2005 hearing conservation report shows a threshold shift (worsening) of the left ear at 500 Hertz and 4000 Hertz in comparison to a February 2001 audiogram. There is no separation physical examination report of record. The Veteran was afforded a VA audiological examination in December 2007. On examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 5 5 0 5 15 Speech audiometry revealed speech recognition ability of 96 percent in the left ear. The December 2007 VA examiner commented that the test results reflected hearing acuity within normal limits. The examiner concluded that the Veteran did not meet the criteria for a left ear hearing loss disability for VA compensation purposes. The Veteran was afforded a second VA audiological examination in February 2012. On examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 0 5 0 10 30 Speech audiometry revealed speech recognition ability of 100 percent in the left ear. Upon review of the claims files, the February 2012 VA examiner diagnosed left ear sensorineural hearing loss. The examiner noted that the Veteran may have had a significant change in hearing thresholds during service, as well as current left ear hearing impairment; however, concluded that the Veteran's current impaired hearing of the left ear did not meet the criteria to be considered a disability for VA compensation purposes. The evidence does not demonstrate that the Veteran has a current left ear hearing loss disability as defined by VA regulations. 38 C.F.R. § 3.385. A service connection claim must be accompanied by evidence which establishes that the claimant currently has a disability. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). To show a current disability for purposes of a claim for service connection, it is not necessary that the disability be present on the most recent examination. Instead, it need only be shown that the disability was present at some point since the claim was filed. McClain v. Nicholson, 21 Vet. App. 319 (2007). That is not the case here. The Board acknowledges the Veteran's contentions of left ear hearing loss, however, service connection for left ear hearing loss is not warranted in the absence of proof of a current disability as defined by the VA. Accordingly, service connection is not in order for this claimed disability. In reaching this decision, the Board has considered the benefit of the doubt rule but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107(b). Increased Rating Legal Criteria The Veteran maintains that he is entitled to an initial disability rating greater than 10 percent for his service-connected degenerative disc disease of the thoracolumbar spine. In that regard, disability evaluations are determined by the application of a schedule of ratings, which are based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). The governing regulations provide that the higher of two evaluations will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2012). Moreover, while the Board must consider the veteran's medical history as required by various provisions under 38 C.F.R. Part 4, including sections 4.2, the regulations do not give past medical reports precedence over current findings. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Furthermore, when an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45 (2012). DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. 38 C.F.R. § 4.45. In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). In the present case, the appeal stems from an initial rating, and the Board must consider the issue as to whether separate or "staged" ratings may be assigned for any or all of the retroactive period from the effective date of the grant of service connection to a prospective rating. See Fenderson v. West, 12 Vet. App. 119 (1999). Thoracolumbar Spine In the April 2008 rating action on appeal, the RO granted service connection for degenerative disc disease of the thoracolumbar spine and assigned an initial 10 percent disability evaluation under 38 C.F.R. § 4.71a (2012), Diagnostic Code (DC) 5242, effective from June 1, 2007, the day following separation from service. In granting service connection, the RO noted that the Veteran was initially treated for low back pain in September 1996, and continued to be treated for such condition until discharge from service. The RO further noted a July 2005 magnetic resonance imaging (MRI) of the Veteran's thoracolumbar spine, which resulted in a diagnosis of degenerative disc disease, with prominent involvement of L5-S1. In a subsequent June 2012 rating decision, the RO granted service connection for left leg radiculopathy and right leg radiculopathy. The RO assigned a separate 20 percent disability rating for the left leg radiculopathy, as well as a separate 10 percent disability rating for the right leg radiculopathy associated with the Veteran's service-connected thoracolumbar spine disorder, effective February 7, 2012. The Veteran has not disagreed with those determinations; therefore, the issues are not before the Board. Thus, evidence pertaining to these service-connected disabilities will not be noted or discussed. The Veteran's thoracolumbar spine disorder is currently rated under 38 C.F.R. § 4.71a, DC 5242, the diagnostic code for degenerative arthritis of the spine. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Id. Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Id. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id. Under DC 5243, intervertebral disc syndrome is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25 (2012). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes a 10 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months; a 20 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. As per Note (1), for purposes of evaluations under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. In determining whether an initial increased rating in excess of 10 percent is warranted, the pertinent evidence of record has been reviewed, and a discussion of such evidence follows. The Veteran was afforded a VA general examination in December 2007. At the time, he reported that he injured his thoracolumbar spine while pulling a generator on a flight line during service in 1996. He stated that he currently took over-the-counter, as well as prescribed pain medication for his thoracolumbar spine pain. He further stated that he recently underwent a steroid injection in August 2007 which alleviated some of his pain. He denied surgery and explained that he was advised to avoid it due to his age. He described a stabbing and aching pain on a consistent basis, and pain on a level of seven of ten; however, sometimes, a ten of ten. He stated that he currently worked at a private company; however, sitting or walking for long periods of time aggravated his back. He denied any urinary or fecal incontinence. He denied the use of assistive devices. He reported that he experienced two incapacitating episodes in the past year. On examination, the Veteran had a normal gait. His thoracolumbar spine was nontender to palpation. There were no deformities. There was normal curvature of the thoracolumbar spine. There was no evidence of muscle spasm. Range of motion testing of the Veteran's thoracolumbar spine demonstrated forward flexion to 90 degrees, without pain; extension to 25 degrees, with pain; left and right lateral flexion to 30 degrees, without pain; and left and right lateral rotation to 30 degrees, without pain. The examiner noted that active range of motion did not reveal any weakness, fatigue, or incoordination. The examiner noted that there was no further loss of range of motion with repetitive movements. On neurological examination, motor skills were normal; there was no evidence of muscle atrophy; and there was no pain on straight leg raise testing. X-rays revealed mild degenerative joint disease of the thoracolumbar spine. The diagnosis was degenerative disc disease of the thoracolumbar spine as per an MRI dated in 2006, chronic low back pain, and degenerative joint disease as per x-ray. Private treatment records dated in August 2007 and January 2009 show the Veteran underwent epidural injections at L5-S1. In a May 2009 letter, the Veteran's private physician indicated that the Veteran received ongoing treatment for his thoracolumbar spine disorder since August 2007. The physician noted the Veteran's diagnoses of degenerative disc disease, as well as facet arthropathy at L4-L5 and L5-S1, and explained that the Veteran had gained significant benefit from interventional procedures to date, to include epidural and steroid injections. The physician concluded that the Veteran's thoracolumbar spine disorder would continue to be an ongoing problem requiring intermittent care. The Veteran was afforded a VA examination in July 2009. At the time, he reported that he experienced daily pain in his thoracolumbar region on a level of seven to ten of ten, that decreased with pain management, to include injections. Regarding injections, he explained that within a week of any injection, his pain however, would increase. He stated that he currently took over-the-counter, as well as prescribed pain medication for his thoracolumbar spine pain. He stated that he sometimes felt that his back was going to give out. He reported that he was unable to lift his child, could not do any year work, or lift anything that weighed more than five pounds. He denied undergoing any surgery. He denied any changes in his bowel or bladder, as well as a history or urinary or fecal incontinence. He denied the use of assistive devices. He reported that he experienced flare-ups approximately two times per month which caused him to take self-imposed bedrest. He further reported that he missed work when he experienced increased pain. On examination, the Veteran had a normal gait. His thoracolumbar spine maintained normal architecture. There was no evidence of muscle spasm. Range of motion testing of the Veteran's thoracolumbar spine demonstrated forward flexion to 90 degrees, with pain at 90 degrees; extension to 30 degrees, without pain; left and right lateral flexion to 30 degrees, with pain at 30 degrees with left flexion; and left and right lateral rotation to 30 degrees, with pain at 30 degrees, bilaterally. The examiner noted that upon repetitive testing, there was no evidence of increased pain, fatigue, weakness, lack of endurance, or incoordination. On neurological examination, straight leg test, Lasegue test, and Babinski sign were negative. The examiner noted that the Veteran could easily heel and toe walk. The diagnosis was degenerative disc disease of the thoracolumbar spine. During a March 2011 hearing before the Board, the Veteran testified that his thoracolumbar spine disorder had increased in severity since the July 2009 VA examination. Specifically, he asserted that he lived with daily pain, that was not entirely relieved by medication or epidural injections. He further asserted that he was limited in his ability to perform activities of daily living, such as mowing the lawn, due to his inability to bend. The Veteran was afforded a VA examination in February 2012. At the time, he reported that he was currently experiencing an acute flare-up, due to a stretching injury which occurred the day before. He further reported that his flare-ups impeded his ability to perform simple activities of daily living. He denied the use of assistive devices. On examination, there was no evidence of muscle spasm or guarding. X-rays revealed arthritis; however, there was no evidence of vertebral fracture. Range of motion testing of the Veteran's thoracolumbar spine demonstrated forward flexion to 70 degrees, with objective evidence of pain at 50 degrees; extension to 30 degrees, with objective evidence of pain at 20 degrees; left and right lateral flexion to 30 degrees, without pain; and left and right lateral rotation to 30 degrees, without pain. Upon repetitive testing, there was no additional loss of range of motion; however, the examiner noted that such testing resulted in functional loss, to include weakened movement, as well as pain on movement. On neurological examination, there was no evidence of muscle atrophy; straight leg test was negative; and there was no evidence of bowel or bladder involvement. The examiner noted that the Veteran exhibited intervertebral disc syndrome (IVDS); however, he also noted that there was no evidence of incapacitating episodes for the past 12 months due to IVDS. The diagnoses were degenerative disc disease and degenerative joint disease of the thoracolumbar spine, as well as a thoracolumbar sprain diagnosed in the 1990's. Upon review of the claims files, the examiner opined that the Veteran's chronic thoracolumbar pain with periodic flare-ups would impede his ability to perform prolonged sitting, standing, or walking activities. A private treatment record dated in February 2012 demonstrates the Veteran underwent an epidural steroid injection of his thoracolumbar spine. Upon review of the record, the Board finds that the Veteran's service-connected thoracolumbar spine disorder warrants an initial disability evaluation of 20 percent, but no more, for the entire appeal period. In this regard, during the aforementioned February 2012 VA examination, on range of motion testing, forward flexion of the thoracolumbar spine was to 70 degrees; however, with objective evidence of pain beginning at 50 degrees. The February 2012 VA examination report also includes the examiner's comment, that upon repetitive range of motion testing there was evidence of functional loss, to include weakened movement and pain on movement. Therefore, considering the DeLuca criteria, as the Veteran's forward flexion was limited by pain to 50 degrees during February 2012 examination, thus, an initial 20 percent disability evaluation under DC 5242 is warranted. 38 C.F.R. §§ 4.40, 4.59, 4.71a; DeLuca supra. The Board does not find that the evidence supports an initial evaluation in excess of 20 percent, as the next higher 40 percent rating requires forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, and the evidence of record does not demonstrate such range of motion or any ankylosis. The Veteran has been diagnosed with degenerative disc disease; however, considering the claim under the criteria for an increased rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Diagnostic Code 5243, does not result in a higher evaluation. The Board acknowledges, that during the December 2007 VA examination, the Veteran reported that he experienced two incapacitating episodes in the past year. The Board further notes, that during the July 2009 VA examination, the Veteran reported that he experienced flare-ups approximately two times per month which caused him to take self-imposed bedrest. However, there is no evidence of record demonstrating the Veteran had any incapacitating episodes that required bed rest prescribed by a physician throughout the appeal period, due to his thoracolumbar spine disorder. Therefore, the Veteran does not warrant an initial 20, 40, or 60 percent disability evaluation under DC 5243. With respect to neurological symptoms, the Board has not considered whether a separate evaluation is warranted for such symptoms associated with the Veteran's service-connected thoracolumbar spine disorder. This is so because, as above, separate evaluations for left and right leg radiculopathy were previously granted by the RO and the Veteran did not disagree with those initial ratings. Further, there is no objective evidence of, nor does the Veteran contend that he has any additional neurological disorders associated with his thoracolumbar spine disorder. Extraschedular Consideration During the July 2009 VA examination, the Veteran stated that when he experienced increased pain, he missed work. As such, the Board must adjudicate the issue of whether referral for an extraschedular rating is warranted. See Barringer v. Peake, 22 Vet. App. 242 (2008). Here, the record does not establish that the rating criteria are inadequate for rating the Veteran's service-connected thoracolumbar spine disorder. The discussion above reflects that the symptoms of the Veteran's disorder, including orthopedic and neurological manifestations, are contemplated by the applicable rating criteria. Thus, referral for consideration of an extraschedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). ORDER Entitlement to service connection for left ear hearing loss disorder is denied. Entitlement to an initial disability evaluation of 20 percent, but no more, for service-connected degenerative disc disease of the thoracolumbar spine is granted. REMAND Additional development is required before the remaining issues on appeal can be adjudicated. Specifically, an examination is necessary, for the reasons discussed below. In addition, the Veteran must be provided a formal application regarding his claim of entitlement to TDIU. With regard to the claim for entitlement to service connection for a right ankle disorder, when the Board last reviewed the claim, it determined that the December 2007 and July 2009 VA examinations were inadequate for rating purposes. Specifically, the December 2007 examination report indicates a diagnosis of right ankle sprain with no residuals; however, the Veteran's claims files were not available for review, and the examiner failed to provide any reasoning for the conclusion reached. See Hernandez-Toyens, Vet. App. 78, 81 (1990); Nieves-Rodriguez v. Peake, 22 Vet. App. 295(2008). Further, testing was not completed concerning the Veteran's right ankle, to include x-rays and/or an MRI. Bloom v. West, 12 Vet. App. 185, 187 (1999) (The value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). Similarly, the July 2009 VA examination report reflects that the Veteran's right ankle was not physically examined at that time. As such, the issue was remanded for another VA examination to address whether the Veteran has a current right ankle disorder which is causally-related to his service. See Barr, 21 Vet. App. 303, 312 (2007); see also 38 C.F.R. § 4.2 (2012). The Veteran underwent a VA examination in February 2012 during which he reported that he sprained his right ankle in the 1990's while in service. He further reported that at the time of the injury, he was treated with a brace and crutches, but continued to experience pain and weakness since such time. Upon examination and review of the claims files, the examiner diagnosed right ankle sprain and tendonitis. The examiner opined that it was less likely than not that the Veteran's current right ankle condition was caused or etiologically related to his service. In providing this opinion, the examiner noted that the Veteran's lateral tendonitis was chronic, however, concluded that the Veteran's service treatment records lack documentation of any treatment for a right ankle injury or problem. The Board finds the February 2012 examination inadequate for rating purposes. The Veteran's service treatment records are devoid of any instance of complaints of or treatment for a right ankle injury in service; however, the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Veteran can attest to factual matters of which he had first-hand knowledge, e.g., experiencing pain in service and reporting for treatment. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Thus, the issue must be remanded for another VA examination. See Barr, 21 Vet. App. 303, 312 (2007). Regarding the claim for TDIU, when the Board last reviewed the case, amongst other things, it noted that the Veteran's occupational history was unclear. Further, it noted that the Veteran had not been provided a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Individual Unemployability) in connection with his claim of entitlement to TDIU. There is no indication that such form was provided to the Veteran. Accordingly, the RO/AMC must provide the Veteran with a VA Form 21-8940 for him to complete and submit. Stegall, 11 Vet. App. 268 (1998). After the Veteran has completed the VA Form 21-8940, the RO/AMC must complete any additional development which flows from the information provided by the Veteran or obtained by the RO/AMC, to include scheduling the Veteran for an appropriate VA examination and/or referring the Veteran's TDIU claim to the Undersecretary for Benefits or the Director of the Compensation and Pension Service for appropriate action as per 4.16(b) (2012). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In this regard, the RO/AMC should ensure that the VA examiner furnishes a full description of the effects of the Veteran's service- connected disabilities upon the Veteran's ordinary activity which includes employment. See 38 C.F.R. § 4.10 (2012). This description may include an opinion on such questions as whether a claimant's condition precludes standing for extended periods, lifting more than a certain weight, sitting for eight hours a day, or performing other specific tasks. Moore v. Nicholson, 21 Vet. App. 211, 219 (2007), rev'd on other grounds sub nom. Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Finally, as the Veteran's TDIU claim is partly reliant upon his service-connected disabilities and the evaluations assigned for such, the TDIU claim is inextricably intertwined with the Veteran's claim of entitlement to service connection for a right ankle disorder. Harris v. Derwinski, 1 Vet. App. 181 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Accordingly, the Veteran's service connection claim remanded herein must be readjudicated prior to the development of the TDIU claim. Accordingly, this case is REMANDED to the RO or the AMC, in Washington, D.C., for the following actions: 1. Provide the Veteran VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, for him to complete, with instructions to return the form to the RO/AMC. 2. Complete any additional evidentiary development necessary to adjudicate a claim for TDIU, to specifically include collecting and verifying information concerning the Veteran's complete educational and occupational history. 3. Thereafter, the Veteran should be afforded a VA examination to determine the nature and etiology of any right ankle disorder(s) that may be present. The claims files and any pertinent evidence in Virtual VA that is not contained in the claims files should be made available to and reviewed by the examiner in conjunction with the examination. The examiner must specifically note on the VA examination report whether the Veteran's VA claims files and Virtual VA file were reviewed in connection with this examination. The examiner is requested to review all pertinent records associated with the claims files, including the Veteran's service treatment records, his post-service medical records, lay statements, and the assertions of the Veteran and his representative. Any and all studies, tests, and evaluations deemed necessary by the examiner, to specifically include x-ray and MRI tests, should be performed. The Veteran has contended that he injured his right ankle during his service. It should be noted that he is competent to attest to factual matters of which he had first-hand knowledge. The examiner should identify all current right ankle disorders. For each disorder identified, the examiner should opine whether it is at least as likely as not that the disorder is causally or etiologically related to the Veteran's service. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. After completing the above actions, the RO/AMC should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 5. Thereafter, the Veteran should be afforded a VA examination to determine the effect of his service-connected disabilities on his employability. The claims files and any pertinent evidence in Virtual VA that is not contained in the claims files should be made available to and reviewed by the examiner in conjunction with the examination. The examiner must specifically note on the VA examination report whether the Veteran's VA claims files and Virtual VA file were reviewed in connection with this examination. The examiner is requested to review all pertinent records associated with the claims files, including the Veteran's service treatment records, his post-service medical records, lay statements, and the assertions of the Veteran and his representative. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must offer an opinion as to whether it is at least as likely as not the Veteran's service-connected disabilities (currently degenerative joint disease of the lumbar spine, traumatic arthritis of the left knee, left knee instability, traumatic arthritis of the right knee, right knee instability, right ear hearing loss, tinnitus, bronchial asthma, peptic ulcer, left leg radiculopathy, right leg radiculopathy, left ankle sprain, recurrent herpes simplex, sebaceous cysts of the chest wall, tension headaches, and ganglion cyst of the left wrist) render him unable to secure and follow a substantially gainful occupation. In providing this opinion, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by any disability other than his service-connected bilateral hearing loss and tinnitus disabilities. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. The examiner must also comment on the effect of the Veteran's service-connected disabilities (listed above) only on his ability to engage in any type of full-time employment and whether, in the examiner's opinion, the service-connected disabilities are of such severity to result in unemployability. In so doing, the examiner should consider the Veteran's acquired skills from his previous occupations. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 6. The Veteran must be properly informed of his scheduled VA examinations, and he should be given notice of the consequences of failure to report for the examinations, including an explanation of the provisions of 38 C.F.R. § 3.655. If the Veteran does not report for the examinations, the claims folder should include clear documentation of his failure to report. 7. When the development requested has been completed, readjudicate the claims on appeal. If any benefits sought are not granted to the fullest extent, the Veteran and his representative must be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs