Citation Nr: 1320637 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 08-36 832A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to a compensable rating for the neurological manifestations of degenerative disc disease of the lumbar spine, from March 19, 2008. 3. Entitlement to service connection for a right knee disability. 4. Entitlement to a total disability rating based on individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1987 to December 1991 and from January 2003 to March 2004. This appeal to the Board of Veterans' Appeals (Board) arose from rating decisions by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Columbia, South Carolina. A May 2008 rating decision continued a 10 percent rating for the lumbar spine disorder, and a December 2008 rating decision denied, in pertinent part, entitlement to service connection for arthritis of the right knee. The Veteran perfected separate appeals to those denials. These matters were before the Board in May 2011, at which time they were remanded for further development. The Veteran appeared at a Board hearing via video teleconference in October 2010 before the undersigned Veterans Law Judge. A transcript of the hearing testimony is associated with the claims file. Although VA has received evidence since the most recent Supplemental Statement of the Case, the Veteran has submitted a waiver of the right to consideration by the agency of original jurisdiction, and consideration of the appeal may proceed. See 38 C.F.R. § 20.1304 (2012). The issues of entitlement to service connection for a right knee disability and entitlement to a total disability evaluation based on individual unemployability due to service connected disorders 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 preponderance of the evidence is against finding that the Veteran has a right ear hearing loss disability for VA purposes. 2. From March 19, 2008, the Veteran's radiculopathy of the right lower extremity was not manifested by moderate incomplete paralysis of the sciatic nerve. 3. From March 19, 2008, the Veteran's radiculopathy of the left lower extremity was not manifested by moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. A right ear hearing loss disability was not incurred or aggravated by active service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.385 (2012). 2. For the period beginning March 19, 2008, the schedular criteria for a rating in excess of 10 percent for radiculopathy of the right lower extremity were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2012). 3. For the period beginning March 19, 2008, the schedular criteria for a rating in excess of 10 percent for radiculopathy of the left lower extremity were not met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Here, the Veteran was sent a letter in 2008 that fully addressed all VCAA notice elements for service connection claims, and a letter in March 2008 that addressed the notice elements for increased rating claims. Those letters were issued prior to the initial RO decisions in this matter. 38 C.F.R. § 3.159(b)(1). No further development is required with respect to the duty to notify. VA's duty to assist the Veteran in the development of the claim includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records from his first period of service, and some records from his service from 2003 to 2004. In conjunction with an earlier claim, VA informed the Veteran in April 2006 of the efforts made to retrieve the records, and asked him to supply any records in his possession and to inform VA of his reserve unit so that outstanding records could be obtained. The Veteran provided the requested information, but it is apparent that VA made no further efforts to obtain the records. The missing records are not relevant to the claims adjudicated herein. Hence, the Board can promulgate decisions on the issues of entitlement to service connection for right ear hearing loss and entitlement to a compensable rating for the neurologic manifestations of degenerative disc disease of the lumbar spine without additional delay. See Moore v. Shinseki, 555 F.3d 1369, 1374 (2009) (holding that VA is statutorily required to obtain all of the Veteran's relevant service treatment records). Briefly, as addressed in more detail below, the Veteran's claim for an increased rating for his degenerative disc disease, from which the claim for a compensable rating for related neurological manifestations derives, was presented in March 2008. Through multiple examinations, VA has a complete picture of the Veteran's disability at all times relevant to the appeal, and VA has been able to consider the history of the disability through those examination reports and the Veteran's assertions concerning the disability. Concerning the right ear hearing loss claim, the Board makes the finding below that the preponderance of the evidence is against finding that the Veteran has a right ear hearing loss disability for VA purposes since filing his claim. Thus, any right ear hearing loss demonstrated while in service would not disturb that finding. Nevertheless, the Board has ordered that VA make additional efforts to retrieve the requested records in the remand section of this decision, in relation to the claim of entitlement to service connection for a right knee disability. The claims file contains post-service reports of VA and private treatment and examination. Notably, VA provided the examinations requested by the Board in the May 2011 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The Veteran's statements in support of the claim are of record, including testimony provided at an October 2010 videoconference hearing before the undersigned. The Board hearing focused on the elements necessary to substantiate his claims, and the Veteran, through his testimony and his representative's statements, demonstrated that he had actual knowledge of the elements necessary to substantiate the claims for benefits. As such, the Board finds that, consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010), the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) (2012), and that the Board can adjudicate the claim based on the current record. The Board has carefully reviewed the Veteran's statements and the medical evidence of record, and concludes that no available outstanding evidence has been identified. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 38 C.F.R. § 3.159(c). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). With chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a), including a sensorineural hearing loss, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). Where there is conflicting medical evidence, the Board may not ignore or disregard any medical professional's opinion, but may favor one medical opinion over by providing an adequate statement of reasons or bases. See Willis v. Derwinski, 1 Vet. App. 66, 70 (1991). A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In making all determinations, the Board must also fully consider the lay assertions of record. Buchanan, 451 F.3d at 1335. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Thus, a layperson is competent to report on the onset and continuity of his symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). For instance, a lay person may speak to etiology in those limited circumstances where a nexus is obvious merely through observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran asserts he sustained right ear hearing loss due to his exposure to loud noise during combat and while riding in loud vehicles. Service-connection for left ear hearing loss was denied in a May 2011 Board decision. For VA purposes, impaired hearing is considered to be a disability when the auditory threshold 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 C.F.R. § 3.385. The Veteran's service treatment records from the period of service ending in 2004 are not available. According to his November 1991 separation examination for the first period of service, findings for his right ear did not meet VA requirements for a hearing loss disability. Id. The November1991 findings were as follows, in decibels: 500 1000 2000 3000 4000 RIGHT 15 05 -05 10 05 The Veteran has had multiple audiological examinations during the present appeal. In September 2008, the Veteran demonstrated the following audiological levels, in decibels: 500 1000 2000 3000 4000 RIGHT 20 30 25 25 25 The examiner stated the Veteran's hearing on the right side was generally within normal limits, sloping to mild sensorineural hearing loss at 6000 to 8000 Hertz, with "excellent" (96 percent) word recognition scores on the Maryland CNC test. VA again provided an audiological examination in July 2009, demonstrating the following decibel loss: 500 1000 2000 3000 4000 RIGHT 20 25 25 30 30 The Veteran had 94 percent speech recognition on the Maryland CNC test. Subsequently, the Veteran sought two private opinions concerning his hearing loss. The first test occurred in September 2009. Although the ensuing report contains only charted results, the Board has considered the report to the extent possible. See Savage v. Shinseki, 24 Vet. App. 259, 271 (2010). In reviewing the chart, it is evident that only two of the relevant charted levels (1000 Hertz and 2000 Hertz) show hearing loss that is 30 decibels or greater. Two other charged levels only include circles falling somewhere between 20 and 30 decibels; the Board is unable to interpret those markings. In November 2009, Dr. L.K. tested the Veteran for right ear hearing loss using air conduction and bone conduction methods. Per the air conduction method, the Veteran had lost the following decibel levels in the right ear: 500 1000 2000 3000 4000 RIGHT 20 30 35 35 25 Under the bone conduction method, the following loss levels were recorded: 500 1000 2000 3000 4000 RIGHT -- 30 30 30 40 The results of any word recognition studies, if conducted, were not recorded. Without a speech discrimination test any word recognition problems cannot be the basis for finding a hearing loss disability. 38 C.F.R. § 4.85(a) (2012). Most recently, VA provided audiological examinations in July 2011 and August 2011. Per the July 2011 examination report, the Veteran had decibel loss in the right ear as follows: 500 1000 2000 3000 4000 RIGHT 20 25 25 30 30 His speech recognition score was 94 percent, which the examiner deemed "Excellent (Normal)." In August 2011, the audiological testing again demonstrated 94 percent speech recognition. The audiometric testing showed the following loss: 500 1000 2000 3000 4000 RIGHT 20 25 25 30 25 In light of the above, the Board is constrained to finding that the preponderance of the evidence is against the claim on both a presumptive and direct basis, as any hearing loss the Veteran has does not rise to the level of a disability under VA regulations. 38 C.F.R. §§ 3.303, 3.307, 3.309(a), 3.385. Only one examination report shows hearing loss in the right ear sufficient to meet the 38 C.F.R. § 3.385 criteria, that being Dr. L.K.'s November 2009 report. The September 2009 report is inconclusive, and the Board is unable to reasonably interpret that report to show hearing loss meeting VA criteria (or a lack thereof) without resort to speculation. The Board finds that single report is less probative than the four examination reports showing that the Veteran did not have right ear hearing loss for VA purposes. First, as noted above, that examination report fails to meet regulatory requirements for adequacy, as no speech recognition testing was performed at that time. 38 C.F.R. § 4.85(a). Even were such testing results included, however, the Board would still be unable to grant the Veteran's claim. This is not a case where the evidence is in equipoise, or even close thereto, when considering the November 2009 examination report. Rather, four separate examinations, spread out over the course of the appeal, have demonstrated no right ear hearing loss disability. The Board finds that the consistency of those four VA examinations, conducted in September 2008, July 2009, July 2011, and August 2011, i.e., both before and after the November 2009 study demonstrate that the Veteran does not meet VA criteria for a hearing loss disability of the right ear. 38 C.F.R. § 3.385. The Board acknowledges the Veteran's contentions that he experienced noise exposure during service, and that he has some difficulty hearing in the right ear. He is competent to identify such symptomatology. Jandreau, 492 F.3d at 1376-77. Further, there is nothing to suggest that the Veteran's reports in that regard are not credible. Nevertheless, service connection for hearing loss requires that certain objective criteria be met, and audiometric testing preponderates against finding that the Veteran meets the requisite criteria. 38 C.F.R. § 3.385. The Veteran's claim, therefore, must be denied. Increased Rating The Veteran's claim for a compensable rating for neurological manifestations of his spine disability derives from his claim of entitlement to an increased rating for lumbar degenerative disc disease. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In claims of entitlement to an increased rating VA must consider that a claimant may experience multiple distinct degrees of disability, resulting in different levels of compensation, from the time the increased rating claim is filed to the time a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function, however, will be expected in all instances. 38 C.F.R. § 4.21. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. In addition, when assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board finds that the preponderance of the evidence demonstrates that the Veteran has neurological manifestations of his degenerative disc disease of the lumbar spine affecting his lower extremities. A September 2007 CT scan, to address back pain and radiculitis, demonstrated foraminal narrowing due to spinal disc protrusions, affecting the right side more than the left. An MRI of the spine conducted in January 2009 showed degenerative narrowing of the intravertebral foramina involving L4-L5 and L5-S1. Thereafter, in March 2009, the Veteran was diagnosed with lumbar radiculitis, based on decreased sensation of the L5-S1 nerve root distribution in the right lower extremity. Muscle strength was 5/5 throughout the bilateral lower extremities, but deep tendon reflexes at the knees were 0/4 bilaterally, and at the ankles were 0/4 on the left, and only a trace reflex on the right. An April 2009 examiner made identical findings. The Veteran received treatment from the pain clinic in April 2009, at which time he reported pain traveling from his back to his left lower leg. Previously, the Veteran had been treated with an epidural steroid injection, with a positive response. The treating provider noted a diagnosis of "radicular syndrome lower limbs." In May 2009, the Veteran received an epidural to treat lumbar radiculitis In July 2009, the Veteran was seen for physical examination at VA by Dr. W.L.B., a neurologist. He informed the examiner that he had hurt his back during parachute jumps in the military. He had left leg pain, and at the time of the examination, his entire left leg was numb. Physical examination demonstrated a claimed inability to feel vibratory sense or monofilament light touch in the left leg. Knee and ankle jerks were present, and there was no muscle atrophy or weakness. Dr. W.L.B. determined that the Veteran's sensory observations did not conform to an anatomic diagnosis, and thus ordered a nerve conduction study and electromyographic studies to determine the presence of any neuropathy or radiculopathy. The Veteran also received a spine examination in July 2009 at VA, from Dr. E.W.A. He described low back pain that radiated down the left leg below the knee. Physical examination demonstrated decreased sensory function in the left lower leg, with knee and ankle jerks that were 1+ and equal. Considering the January 2009 MRI showing foraminal narrowing in the spine, the Dr. E.W.A. diagnosed the Veteran with bilateral lumbar radiculopathy, left greater than right. An August 2009 treatment report indicated that the Veteran's deep tendon reflexes were difficult to elicit in the lower extremities, but that there were no gross motor or sensory deficits. The Veteran underwent an electromyographic and nerve conduction studies in August 2009. The ensuing report stated that bilateral sural sensory responses were slightly delayed. The left peroneal motor conduction studies and electromyographic study of the left lower extremity fell within normal limits. Dr. A.H., a neurologist, opined that the findings could represent a mild sensory neuropathy. In an August 2009 addendum, Dr. W.L.B. cited the nerve conduction study, and concluded that it failed to confirm the severe sensory impairment observed in the clinical examination. His conclusion, therefore, was that the Veteran had no evidence of nerve impairment sufficient to explain the symptoms and observed clinical findings. Dr. E.W.A., who conducted the July 2009 spine examination, provided a supplemental opinion in August 2009. Dr. E.W.A. acknowledged the August 2009 electromyographic study results, and noted that on his July 2009 examination, the clinical evidence pointed primarily to a left lumbar radiculopathy, but the imaging evidence pointed to a bilateral radiculopathy, more severe on the left side. Dr. E.W.A. stated that, "[i]n general, when asked for my opinion concerning the presence of a radiculopathy from the lumbar spine, I defer to the diagnosis of the neurologist." He recommended that the neurologist's interpretation be taken as the standard. According to a September 2009 radiology report, the Veteran had degenerative narrowing of the intravertebral foramina involving L4-L5 and L5-S1, similar to previous studies. In July 2011, Dr. W.L.B. provided an addendum opinion concerning radicular symptoms. He explained that previous findings showing intact knee and ankle jerks, but absent lower extremity sensory responses, necessitated the electromyographic and nerve conduction studies. The electromyographic results showed no radiculopathy, rather only the existence of mild sural nerve responses and mild sensory neuropathy. Dr. W.L.B. opined that the absence of electromyographic findings in this case precluded the diagnosis of radiculopathy. Although it was possible to have normal electromyographic findings in the face of radiculopathy, he felt that no one had described clinical findings consistent with radiculopathy. There had been no muscle atrophy, weakness, or an appropriate specific anatomic patter of sensory loss. Therefore, it was his opinion that the Veteran did not have radiculopathy. Most recently, in November 2012, VA again sent the Veteran for a spine examination. The examiner noted normal knee and ankle deep tendon reflexes, and a normal sensory examination for the lower extremities. A straight leg test on the right was negative, but the same test on the left was positive, possibly suggesting radiculopathy. The examiner determined that the Veteran did have signs and symptoms of radiculopathy. He had mild constant pain on the right, and moderate constant pain in the left lower extremity. Similarly, there were mild paresthesias on the right, and moderate paresthesias no the left. Numbness too was mild on the right, and moderate on the left. The examiner noted the Veteran's MRI results, and found that there was involvement of the L4/L5/S1/S2/S3 nerve roots for both lower extremities, and determined mild radiculopathy of the right, and moderate radiculopathy of the left. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve, and therefore neuritis and neuralgia of that nerve. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis which is mild, moderate or moderately severe in degree, respectively. A 60 percent rating is warranted for severe incomplete paralysis with marked muscle atrophy. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Diagnostic Code 8620 refers to neuritis of the sciatic nerve, and Diagnostic Code 8720 refers to neuralgia of the sciatic nerve. The Board finds that separate, 10 percent ratings for mild radiculopathy of each lower extremity are warranted, but that the Veteran does not meet the criteria for moderate radiculopathy at any point during the appeal. First, the Board has determined that the evidence is essentially in equipoise regarding the existence of radiculopathy in the left and right lower extremities, and thus the Veteran has been provided the benefit of the doubt. 38 U.S.C.A. § 5107. The evidence is by no means clear. In the Veteran's favor, multiple examiners, including Dr. E.W.A. and the November 2012 examiner, Dr. N.Y.E., determined that physical evaluation, when considered in conjunction with MRI findings of foraminal narrowing, were sufficient to diagnose radiculopathy. In contrast, Drs. W.L.B. and A.H., both neurologists, determined that there was insufficient evidence for a finding of radiculopathy. Although Dr. E.W.A. ultimately deferred to Dr. W.L.B. and the EMG findings, the Board finds that the opinions of Drs. N.Y.E. and E.W.A. following their physical examination of the Veteran's lower extremities, and their review of spinal imaging, to be sufficient to create an approximate balance of the evidence. The Board's determination that the bilateral disability is "mild" is based on the analysis of the totality of the evidence. Early in the Veteran's treatment, the evidence suggested that the disability of the right lower extremity was worse than that on the left. Thereafter, the evidence shows a somewhat worse disability on the left, including the November 2012 examiner's findings of "moderate" radiculopathy of the left lower extremity, in contrast to the finding of "mild" radiculopathy on the right. While this evidence, including the November 2012 report, is clearly probative of the severity of the left lower extremity disability, the Board must interpret all of the evidence in light of the opinions of the neurologists, Drs. A.H. and W.L.B., and their interpretations of the August 2009 electromyographic study. The fact that the Board has determined that the evidence is in equipoise concerning the existence of the disability, and that the November 2012 opinion of Dr. N.Y.E., and Dr. E.W.A.'s original opinion following physical examination are sufficient to determine that there is a disability, does not mean that the Board must disregard the findings of the neurologists who have participated in the Veteran's treatment in its adjudication of the appropriate rating for the disability. It is extremely relevant that the only objective testing performed, the electromyographic and nerve conduction studies, demonstrated no evidence of radiculopathy, and only at most a mild neuropathy on the left. The more subjective results inevitably relied on the Veteran's description of the disability. Ultimately, the Board finds that objective testing to be more probative than the Veteran's responses concerning the severity, due to the fact that Dr. W.L.B. clearly and strongly opined that the clinical observations he made and otherwise of record were not supported by the objective testing. That opinion casts doubt on the severity of the disability as described based solely on the Veteran's statements and his responses to tests such as the ability to sense vibrations and monofilament. See Barr, 21 Vet. App. at 308 (addressing consideration of the Veteran's credibility) Therefore, the Board finds that the disability is, at most, characterized as "mild" bilaterally, throughout the period on appeal. The evidence preponderates against finding a "moderate" disability. That finding is unaffected by the November 2012 examiner's finding that the Veteran had "moderate" left lower extremity radiculopathy, as those findings were based on the Veteran's responses, rather than purely objective testing. Therefore, the Board finds that 10 percent ratings for each lower extremity, based on mild radiculopathy, are warranted. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The Board considered whether the Veteran's bilateral radiculopathy disability, considered alone or in conjunction with his other service-connected disabilities, presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). In this case there are no exceptional or unusual factors with regard to the Veteran's radiculopathy disability. The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) (holding that the "rating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for consideration of greater disability and symptoms than currently shown by the evidence. There is no suggestion that the Veteran has required periods of hospitalization. To the extent that his disabilities have interfered with his employment, the Board is remanding the issue of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extra-schedular consideration is not warranted. ORDER Entitlement to service connection for a right ear hearing loss is denied. Entitlement to a 10 percent rating, and no higher, for radiculitis of the right lower extremity, secondary to degenerative disc disease of the lumbar spine, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a 10 percent rating, and no higher, for radiculitis of the left lower extremity, secondary to degenerative disc disease of the lumbar spine, is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND The Board remanded the Veteran's claim for entitlement to service connection for a right knee disability in May 2011 for an addendum opinion concerning the etiology of his claimed disability. Although such an addendum was obtained, it is deficient. See Barr, 21 Vet. App. at 311 (holding that when VA undertakes to provide an examination, the examination, and ensuing report, must be adequate). The examiner, in his July 2011 post-remand addendum, noted, as he had in his July 2009 examination report, that the service treatment records did not demonstrate any medical care for right knee complaints. Therefore, he requested a new knee examination. The fact that the Veteran was not treated for a right knee disability, which may not necessarily be the case since, as discussed below, the claims file does not include all service treatment records; is not a sufficient basis on which to base a medical opinion. The lack of contemporaneous medical records may be considered by the Board in determining the Veteran's credibility, but the Veteran is competent to report what occurred during his service. See Buchanan, 451 F. 3d at 1336-37. In this case, the Veteran's reports of a right knee injury are consistent with the circumstances, conditions, and hardships of his combat service, and must be addressed by the examiner. 38 U.S.C.A. § 1154(b). Reaching such a conclusion based on the service treatment records is inappropriate as the claims file demonstrates that VA has not yet obtained all of the Veteran's service treatment records. In March 2006, the RO made a finding that the service treatment records for the Veteran's tour of duty in 2003-2004 were not available. Subsequently, they asked the Veteran to provide the name of his reserve unit, so that the records could be obtained. The Veteran provided that information in March 2006, but there is nothing in the file to suggest that VA made any effort to obtain the records. On remand, and before obtaining any addendum opinion, VA should attempt to obtain a complete copy of the Veteran's service treatment records. See Moore, 555 F.3d at 1374. VA should also obtain and associate with the claims file all outstanding VA treatment records. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that VA treatment records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Further, it is not clear what, if any, right knee disability the Veteran currently has. At various times since service, the Veteran has been diagnosed with arthritis, although imaging has been negative for degenerative changes. He also has been diagnosed with patellofemoral pain and iliotibial band syndromes. Following the July 2011 addendum, VA provided the Veteran with a new examination. The November 2012 knee examiner diagnosed retropatellar pain syndrome, and provided a positive nexus opinion, but did not indicate if that diagnosis was in reference to the right or left knee. That examination, therefore, is also deficient. See Barr, 21 Vet. App. at 311. Hence, after obtaining the Veteran's outstanding service treatment records, the November 2012 examination report must be returned to the examiner who conducted the exam for a clarification as to which knee was referenced by the retropatellar pain syndrome diagnosis included in that examination report, as well as a clarification of the nexus opinion provided in the report. Further, in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009), a Veteran's claim for an increased disability rating may require a determination as to whether he is entitled to a total disability rating based on individual unemployability. Entitlement to individual unemployability is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Veteran is service-connected for posttraumatic stress disorder, rated at 50 percent for the period on appeal; for degenerative disc disease of the lumbar spine, rated at 10 percent prior to July 24, 2009, and at 20 percent beginning that date; for tinnitus, rated at 10 percent from September 23, 2008; for gastroesophageal reflux disease, rated at 10 percent from September 23, 2008; for retropatellar pain syndrome of the left knee, rated at 10 percent from September 30, 2005 through September 29, 2009, 30 percent for September 30, 2009 through May 31, 2013, and 10 percent beginning June 1, 2013; and for radiculopathy of each lower extremity, each rated at 10 percent, beginning March 19, 2008. Applying the combined ratings table found at 38 C.F.R. § 4.25 (2012), the appellant has had a combined 70 percent rating throughout the appellate term, and thus he meets the minimum percentage rating requirements of 38 C.F.R. § 4.16(a) (2012) for entitlement to a total disability evaluation based on individual unemployability due to service-connected disorders. In determining whether a Veteran is entitled to a total disability evaluation based on individual unemployability due to service connected disorders, consideration is given to his level of education, special training, and previous work experience, but not to his age or impairment caused by disabilities that are not service connected. See 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2012). For VA purposes, the term unemployability is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2317 (1992). To be awarded a total disability evaluation based on individual unemployability due to service connected disorders, the Veteran's service-connected disabilities, standing alone, must be sufficiently severe to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Court clarified in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), that the disability rating, itself, is recognition that industrial capabilities are impaired. Indeed, according to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. So above and beyond this, the record must reflect some factor that takes a particular case outside the norm in order for a claim for individual unemployability benefits to prevail. The mere fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. Id. Turning to the facts of this case, there is limited evidence concerning the Veteran's employment outside of the military, where, in addition to the two tours of active duty, he served in the reserve. What is evident from the record is that in December 2012, the Department of Defense found the Veteran physically unfit to continue service due to four service-connected disabilities, as well as his right knee disability, concerning which the issue of service connection remains on appeal. The Department of Defense finding constitutes a suggestion of unemployability. Thus, the issue of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders has been raised, and must be considered on remand. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding service treatment records. The RO/AMC should contact all potential sources for the records, including, but not limited to, the National Personnel Records Center and the Veteran's former reserve unit. The RO/AMC should document all attempts to obtain the records, and if it is determined that the records are unavailable, must make a formal finding in that regard. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Obtain and associate with the claims file any pertinent records adequately identified by the Veteran, including any ongoing VA treatment records. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 3. Thereafter, return the claims file to the November 2012 knee examiner. The examiner should review the claims file, this remand, and the Veteran's Virtual VA electronic file. In answering all questions presented, the examiner should take note of the December 2012 Physical Evaluation Board findings, which are found in the Virtual VA system, and which include a diagnosis of a right knee disability and a finding that such a disability began during active duty. The examiner must address the following: (1) The examiner must review her November 2012 examination report, and indicate whether the Veteran has a right knee disability. If she determines that there is no right knee disability present, she must specifically explain why her findings are contrary to those in the December 2012 Physical Evaluation Board findings. (2) If the Veteran does have a right knee disability, the examiner must opine whether it is at least as likely as not (a 50 percent probability or more) that disability began during or is otherwise etiologically to service. If she determines that there is no etiological relationship between any right knee disability present and the Veteran's active duty service, she must specifically explain why her findings are contrary to those in the December 2012 Physical Evaluation Board findings. (3) If the Veteran does have a right knee disability, but the examiner is of the opinion that such a disability is not etiologically related to service, then she must opine as to whether it is at least as likely as not (a 50 percent probability or greater) that the right knee disability has been aggravated beyond the natural progression of the disability by either the left knee disability or the degenerative disc disease of the lumbar spine with radiculopathy. (4) If aggravation is found present, the examiner must address the following medical issues: (a) the baseline manifestations of the Veteran's right knee disability found present prior to aggravation; and (b) the increased manifestations which, in the examiner's opinion, are proximately due either the left knee disability or the degenerative disc disease of the lumbar spine with radiculopathy. The examiner must provide a full and complete rationale for all opinions expressed. If she cannot reach an opinion without resorting to speculation, she must explain why a response would be speculative If the November 2012 examiner is unavailable, a similarly qualified medical professional must be asked to address the questions presented. Only if a medical professional indicates that a new examination is necessary should the RO/AMC require the Veteran to attend a new knee examination. The Veteran is to be notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examinations, documentation should be obtained which shows that notice scheduling the examinations was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. The RO/AMC should review the ensuing examination report and ensure that it fully addresses the questions presented. If the report is inadequate in any way, the RO/AMC should take immediate corrective action. 5. Send the Veteran appropriate notice concerning the requirements for entitlement to a total disability rating due to individual unemployability, and a formal application for individual unemployability, with the request that he complete and return the application. 6. Complete all development necessary to adjudicate the issue of entitlement to total disability evaluation based on individual unemployability due to service connected disorders. If an additional medical opinion is needed to address the question of whether it is at least as likely as not that the Veteran's service connected disabilities preclude substantially gainful employment during the period on appeal, then such an opinion should be obtained. A full rationale for all opinions expressed in the resulting report must be provided. If such an opinion is necessary, and if the medical professional providing the opinion is unable to respond without resorting to speculation, she/he should explain why a response would be speculative. In that regard, it does not appear that any further examination would be needed to adjudicate the claim, and thus, only if examination is deemed necessary by a medical provider should the Veteran be requested to appear in person for an examination. 7. After completion of the above and any additional development deemed necessary, the issues on appeal must be reviewed with consideration of all applicable laws and regulations. If any claim is not granted to the Veteran's satisfaction, send him and his representative a Supplemental Statement of the Case concerning this claim and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs