Citation Nr: 1323065 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 09-12 280 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial compensable evaluation for bilateral hearing loss. 2. Entitlement to a rating in excess of 10 percent for degenerative disc disease of the lumbar spine. 3. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the right lower extremity. 4. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the left lower extremity. 5. Entitlement to service connection for a right shoulder disability, to include as secondary to service-connected degenerative disc disease of the lumbar spine. 6. Entitlement to service connection for a left shoulder disability, to include as secondary to service-connected degenerative disc disease of the lumbar spine. 7. Entitlement to service connection for a right hip disability, to include as secondary to service-connected degenerative disc disease of the lumbar spine. 8. Entitlement to service connection for a left hip disability, to include as secondary to service-connected degenerative disc disease of the lumbar spine. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from December 1943 to February 1946 and from December 1946 to August 1948. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In September 2012, the Veteran testified before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is of record. The case was previously before the Board in March 2013 when it was remanded for additional development. The case has now returned to the Board for further appellate action. One of the Veteran's claims was initiated with respect to the denial of a rating in excess of 10 percent for a low back disability in a June 2006 rating decision. In March 2009, the RO granted entitlement to service connection for peripheral neuropathy of the bilateral lower extremities secondary to the spine disability, and assigned separate 10 percent ratings effective April 14, 2005. The diagnostic codes for rating disabilities of the spine provide for the assignment of separate ratings for associated objective neurologic abnormalities. Therefore, the initial ratings for the neurological impairment of the lower extremities are considered part of the appeal for a higher rating for the low back disability. In June 2013, subsequent to the issuance of the most recent supplemental statement of the case (SSOC) in June 2013, the Veteran submitted evidence pertinent to the claims for an increased rating for a low back disability and service connection for disabilities of the hips. This evidence was accompanied by a waiver of RO consideration. Thus, the Board will consider the claims on the merits. See 38 C.F.R. § 20.1304 (2012. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). The claim for entitlement to an initial compensable rating for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's degenerative disc disease of the lumbar spine manifests forward flexion greater than 30 degrees, a combined range of motion greater than 120 degrees, no muscle spasm, a normal gait and normal spinal contour without incapacitating episodes requiring bed rest prescribed by a physician. 2. For the period prior to June 27, 2013, the Veteran's peripheral neuropathy of the right lower extremity most nearly approximated incomplete paralysis of the femoral nerve that was mild. 3. For the period beginning June 27, 2013, the Veteran's peripheral neuropathy of the right lower extremity most nearly approximates incomplete paralysis of the femoral nerve that is moderate. 4. The Veteran's peripheral neuropathy of the left lower extremity most nearly approximates incomplete paralysis of the femoral nerve that is mild. 5. Right shoulder strain and arthritis was not present in service or until years thereafter, is not etiologically related to any incident of service, and is not caused or aggravated by a service-connected disability. 6. Left shoulder strain and arthritis was not present in service or until years thereafter, is not etiologically related to any incident of service, and is not caused or aggravated by a service-connected disability. 7. Right hip strain was not present in service or until years thereafter, is not etiologically related to any incident of service, and is not caused or aggravated by a service-connected disability. 8. Left hip strain was not present in service or until years thereafter, is not etiologically related to any incident of service, and is not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for degenerative disc disease of the lumbar spine are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.45, 4.71a, Diagnostic Codes 5235-5243 (2012). 2. The criteria for an initial rating in excess of 10 percent for peripheral neuropathy of the right lower extremity for the period prior to June 27, 2013 are not met. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8526. 3. The criteria for a rating of 20 percent, but not higher, for peripheral neuropathy of the right lower extremity for the period beginning June 27, 2013 are met. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8526. 4. The criteria for an initial rating in excess of 10 percent for peripheral neuropathy of the left lower extremity are not met. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8526. 5. Right shoulder strain and arthritis were not incurred in or aggravated by active service and are not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 6. Left shoulder strain and arthritis were not incurred in or aggravated by active service and are not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 7. Right hip strain was not incurred in or aggravated by active service and is not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. 8. Left hip strain was not incurred in or aggravated by active service and is not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Claims Service connection for a back injury of the lumbar spine was granted in a February 1946 rating decision. An initial 10 percent evaluation was assigned effective February 28, 1946. The June 2006 rating decision on appeal continued the current 10 percent evaluation and recharacterized the service-connected back disability as degenerative disc disease of the lumbar spine. In a March 2009 rating decision, service connection was granted for peripheral neuropathy of the bilateral lower extremities as secondary to the degenerative disc disease. Separate 10 percent evaluations were assigned for each lower extremity effective April 14, 2005. The Veteran contends that increased ratings are warranted for his orthopedic and neurological impairment of the lumbar spine as the disability is productive of constant pain and functional limitations. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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). Where the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). In applying regulations that rate disabilities based on range of motion, VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Veteran's lumbar spine disability is rated under Diagnostic Code 5242 for degenerative arthritis and the general rating formula for diseases and injuries of the spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5242. The Board also notes that the Veteran has been diagnosed with degenerative disc disease and the criteria pertaining to intervertebral disc syndrome are also for application. Intervertebral disc syndrome is evaluated under the general 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 evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under the general rating formula for rating diseases and injuries of the spine, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. A 10 percent evaluation is assigned 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 evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is 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 evaluation is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. After review of the evidence, the Board finds that a rating in excess of 10 percent for degenerative disc disease of the lumbar spine is not warranted. With respect to limitation of motion, the Veteran's thoracolumbar spine movement was most limited during a February 2006 VA contract examination. At that time, flexion was limited to 90 degrees and the combined range of motion of the spine was to 245 degrees. There was no tenderness, muscle spasm, or ankylosis, and examination of the thoracolumbar spine was normal. Similar findings were noted by other VA examiners in February 2009 and April 2013 when the Veteran's lumbar spine manifested mild limitation of motion and no functional limitations other than pain with extended sitting. VA treatment records from various VA facilities document complaints of low back pain, but there are no findings of limited motion, muscle spasms, or abnormal spinal contour or gait due to the service-connected disability. The record also contains an April 2007 letter from the Veteran's private physician, stating that the Veteran meets the VA criteria for an increased 20 percent evaluation. However, this medical opinion is not accompanied by any specific medical findings and the physician did not reference any examination results to support the conclusion that the Veteran's disability warrants a 20 percent rating. In fact, there is no basis at all for the private doctor's opinion and no discussion of the actual criteria used to rate disabilities of the spine. The Board therefore finds that the April 2007 letter is of little probative value in determining the severity of the service-connected low back disability. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment, but notes that the range of motion values reported by the VA examiners took into account the Veteran's complaints of pain at the endpoints of testing. There was also no additional loss of motion with repetitive testing. Therefore, even with consideration of functional factors, it is clear that the Veteran's lumbar spine disability has not most nearly approximated the criteria associated with an increased rating under the general rating formula. The Board will now address whether an increased rating is warranted under the criteria pertaining to intervertebral disc syndrome. Under Diagnostic Code 5243, a 10 percent evaluation is assigned with incapacitating episodes having a total duration of at least once a week but less than two weeks during the past 12 months. A 20 percent evaluation is assigned in cases of intervertebral disc syndrome with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past twelve months. A 40 percent evaluation contemplates incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months. An "incapacitating episode" is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bedrest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243. In this case, the medical and lay evidence does not establish that the Veteran has been prescribed any periods of bedrest by a physician. Treatment records from the Veteran's VA physicians do not document any prescribed bedrest, and there is no mention of bedrest in the April 2007 letter from the Veterans private doctor. In June 2013, the Veteran's private physician also stated that he could not recall whether the Veteran had ever required prescribed bedrest to treat his low back disability. In addition, the Veteran never reported requiring bedrest during the VA examinations performed in February 2006, February 209, and April 2013. In fact, he specifically denied experiencing any incapacitation due to the service-connected lumbar disability to the VA examiners. He also did not testify that he required bedrest at the September 2012 hearing. Therefore, the record does not establish that the Veteran has experienced incapacitating episodes as defined by VA at anytime during the claims period. An increased rating under the formula for rating intervertebral disc syndrome is not warranted. Regarding neurological impairment, Note 1 following the general formula for rating diseases and injuries of the spine states that neurological abnormalities are to be evaluated separately using an appropriate diagnostic code. 38 C.F.R. § 4.71a, 5235-5243. The Veteran is currently in receipt of 10 percent ratings for peripheral neuropathy of each lower extremity under Diagnostic Code 8526 for impairment of the anterior crural nerve (femoral). Under this diagnostic code, complete paralysis of the femoral nerve with paralysis of the quadriceps extensor muscles warrants a maximum 40 percent evaluation. Severe incomplete paralysis warrants a 30 percent evaluation, while a 20 percent evaluation is assigned for moderate incomplete paralysis. Mild incomplete paralysis warrants a 10 percent evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8526. The term "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The Board finds that the Veteran's neurological impairment of the lower extremities is contemplated by the currently assigned separate 10 percent ratings during the period prior to June 27, 2013. The Veteran complained of pain radiating from his back into his legs since the February 2009 VA contract examination. He also manifested decreased sensation to pinprick testing over the left foot during the February 2006 VA contract examination. Similar sensory loss was observed in February 2009 when a sensory deficit over the bilateral thighs was observed. Motor and reflex examination was normal. The February 2009 contract examiner diagnosed bilateral radiculopathy. The Veteran testified in September 2012 that he underwent surgery in November 2011 to repair a pinched nerve in his back, and upon VA examination in April 2013 neurological examination of the bilateral lower extremities was normal except for hypoactive bilateral ankle reflexes. The Veteran also reported that his radicular pain resolved after the November 2011 surgery. Therefore, while the record documents some loss of sensation in the bilateral lower extremities during the period prior to June 27, 2013, these findings were sensory in nature and the Veteran's complaints of pain appear to have mostly resolved following the November 2011 surgery. The service-connected neurological impairment clearly most nearly approximates incomplete paralysis of the bilateral femoral nerves that is no more than mild throughout the period prior to June 27, 2013. During the period beginning June 27, 2013, the Board finds that an increased 20 percent evaluation is warranted for the Veteran's neuropathy of the right lower extremity. In June 2013, the Veteran submitted a VA Disability Benefits Questionnaire (DBQ) from a private physician pertaining to his service-connected back condition. Regarding neurological impairment, the private doctor noted that the Veteran had full sensation to light touch across both lower extremities and normal bilateral deep tendon reflexes. Despite these findings, the private doctor indicated the presence of moderate symptoms of radiculopathy of the right lower extremity. The Veteran manifested moderate pain and paresthesias of the right leg and the private doctor concluded that the radiculopathy most nearly approximated moderate. The Board therefore finds that an increased 20 percent evaluation is warranted for the Veteran's neurological impairment of the right lower extremity for the period beginning June 27, 2013. An increased rating is not appropriate for peripheral neuropathy of the left lower extremity during this period; the private doctor's findings of moderate radiculopathy on the June 2013 DBQ were limited to the right lower extremity and as noted above, sensation and reflexes of the left leg were normal. As there is no evidence the left lower extremity manifests neurological impairment that most nearly approximates moderate, an increased rating is not warranted for this disability during the period beginning June 27, 2013. In sum, the Board finds that the impairment from the Veteran's service-connected degenerative disc disease of the lumbar spine is contemplated by the currently assigned 10 percent rating. Ratings in excess of 10 percent for peripheral neuropathy of the lower extremities are also not warranted during the period prior to June 27, 2013 as the disabilities manifested incomplete paralysis of the femoral nerves that is no more than mild. During the period beginning June 27, 2013, an increased 20 percent evaluation is warranted for moderate neurological impairment of the right lower extremity only. The Board has considered whether there is any schedular basis for granting a higher rating, but has found none. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claims. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court of Appeals for Veterans Claims (Court) has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's disabilities. The Veteran's degenerative disc disease and bilateral peripheral neuropathy are manifested by symptoms such as pain, limited motion, and mild loss of sensation in the lower extremities. These manifestations are contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the disabilities and referral for consideration of extraschedular rating is not warranted. Entitlement to a TDIU is an element of all claims for a higher initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). A claim for TDIU 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); see Jackson v. Shinseki, 587 F.3d 1106 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). In this case, the record is negative for evidence that the Veteran is unemployable. He is not in receipt of Social Security disability benefits, and has continued to work as mayor of the city of Newborn, Georgia throughout the claims period. There is no medical evidence that the Veteran's low back and neurological disabilities have interfered with his employment, and the Veteran has not stated that he has lost any time from work or is unable to perform his duties due to the service-connected conditions. Therefore, remand of a claim for TDIU is not necessary as there is no evidence of unemployability due to the service-connected disabilities. Service Connection Claims The Veteran contends that service connection is warranted for disabilities of the bilateral shoulders and hips as they were incurred secondary to service-connected degenerative disc disease of the lumbar spine. During the September 2012 hearing, the Veteran testified that he believed his back disability had altered the alignment of his joints and affected the shoulders and hips. Service connection is also possible for the claimed disabilities as directly due to active duty service. Service connection is provided for a disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. Service connection is also 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 requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Turning first to whether service connection is warranted on a secondary basis, the record clearly establishes the presence of current shoulder and hip disabilities. The Veteran was diagnosed with a bilateral shoulder strain and bilateral hip strain upon VA examinations in April 2013. X-rays associated with the April 2013 VA examinations demonstrated arthritis of the shoulders and VA treatment records also document complaints and treatment for shoulder and hip pain. Although the evidence establishes the presence of current bilateral shoulder and hip disabilities, the weight of the evidence is against a relationship between the current disabilities and the Veteran's service-connected degenerative disc disease. The Veteran submitted an April 2007 statement from his private physician noting that the claimed bilateral shoulder and hip pain may be related to his lumbar spine condition. The Board finds that the April 2007 opinion is speculative and therefore cannot support the claim as it is expressed in terms of a possible relationship, rather than a probable one. See Perman v. Brown, 5 Vet. App. 237, 241 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992); Obert v. Brown, 5 Vet. App. 30 (1993); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996). Opinions which resort to mere speculation amount to "nonevidence," neither for nor against the claim, because service connection may not be based on speculation or remote possibility. See generally Bloom v. West, 12 Vet. App. 185 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). See also 38 C.F.R. § 3.102 (when considering application of the benefit-of-the-doubt doctrine, reasonable doubt is one within the range of probability, as distinguished from pure speculation or remote possibility). Thus, the April 2007 private opinion is nonevidence and does not support the claim. In June 2013, the Veteran submitted a second medical opinion in support of his claims for service connection for bilateral hip disabilities. On a VA DBQ dated in June 2013, a private doctor found that the Veteran's claimed bilateral hip disabilities were as likely as not due to the service-connected lumbar spine condition. Although this statement constitutes competent medical evidence, the Board notes that the private doctor's medical opinion is not accompanied by any supporting rationale or reasoning. The doctor did not provide any basis for the stated conclusion and did not reference any evidence, either from a physical examination or from past records, to support the proffered medical opinion. Without such evidence, the Board finds that the June 2013 private medical opinion is of very little probative value. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). In contrast, the record contains the medical opinions of the April 2013 VA examiner who found that the Veteran's bilateral shoulder and hip disabilities were less likely than not related to the service-connected lumbar spine disability. The opinions were rendered after a full physical examination of the Veteran and with an accompanying rationale. The examiner noted that there were minimal objective findings of shoulder and hip disabilities and also observed that there was no biological mechanism to connect the claimed shoulder conditions to the low back. The Veteran also had no shoulder or hip complaints until 2005 and his condition appeared to worsen after 2011 when he was involved in a motor vehicle accident. Although the April 2013 VA examiner did not provide a large amount of detail in his supporting rationale, the conclusion that the Veteran's low back disability did not cause or aggravate the claimed shoulder and hip disabilities clearly outweighs the speculative and completely non-supported April 2007 and June 2013 private opinions. The Board has also considered the Veteran's statements linking his shoulder and hip disabilities to the service-connected degenerative disc disease of the lumbar spine, but as a lay person, he is not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999). The Board acknowledges that the Veteran is competent to testify as to observable symptoms, but finds that his opinion as to the cause of his claimed disabilities simply cannot be accepted as competent evidence and is clearly outweighed by the medical opinion against the claims. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006). Thus, the Board finds that the competent evidence of record weighs against the claim for service connection on a secondary basis for bilateral shoulder and hip disabilities. Turning to whether service connection is warranted on a direct basis, the Veteran has not contended that he experienced any symptoms of shoulder or hip pain during military service. His service records are negative for evidence of the disabilities and there is no documentation of shoulder arthritis within a year after separation to allow for service connection on a presumptive basis. See 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). The earliest evidence of the claimed disabilities dates from April 2005, 65 years after the Veteran's discharge from active duty service, when he first filed a claim for service connection. In addition, the record does not demonstrate the presence of a nexus between the Veteran's shoulder and hip disabilities and any incident of active duty service, to include a report of continuity of symptoms since service. In sum, the post-service evidence of record shows that the first evidence of the Veteran's claimed disabilities was many years after his separation from active duty. In addition, the competent evidence does not establish that the Veteran's shoulder and hip disabilities were incurred secondary to the service-connected lumbar spine disability or active service. The Board therefore concludes that the evidence is against a nexus between the Veteran's claimed disabilities and a service-connected disability or active duty service. Accordingly, the Board must conclude that the preponderance of the evidence is against the claims and they are denied. 38 U.S.C.A. § 5107(b) (West 2002). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) with respect to the claims for increased ratings and service connection on a direct and secondary basis was furnished to the Veteran in a January 2006 letter. While he has not received specific information regarding the disability rating and effective date elements of his claims in accordance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), as the claims are being denied no additional disability ratings or effective dates will be assigned. Therefore, the Veteran is not prejudiced by the lack of notice on these elements of the claims. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). The Veteran was provided proper VA examinations in response to his claims for increased ratings and service connection in April 2013. VA has obtained records of treatment reported by the Veteran, including service treatment records and records of VA treatment. Although the Veteran has reported undergoing treatment with a private orthopedist and submitted CDs of medical records from this physician, any medical records contained on the CDs are not accessible by VA equipment. The Veteran was contacted in a March 2013 letter and asked to submit medical release forms for all private doctors who have treated the disabilities on appeal, to specifically include Dr. Bryan R. Perry at the Newton Medical Center in Covington, Georgia. No response to this request was received and VA cannot obtain private medical records on the Veteran's behalf without a proper medical release. The Court has held that VA's duty to assist the Veteran in developing the facts and evidence pertinent to a claim is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). It is the responsibility of Veterans to cooperate with VA. See Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 483 (1992). It is clear from the above that VA has done its utmost to develop the evidence with respect to the Veteran's claims and any failure to develop the claims rests with the Veteran himself. VA has also complied with the March 2013 remand orders of the Board. In response to the Board's remand, the Veteran was contacted and asked to identify all private physicians who have treated the disabilities on appeal. He was also asked to provide medical release forms to allow VA to obtain all available private medical records on his behalf. The March 2013 letter also asked that the Veteran identify the physician or facility that performed his November 2011 spinal surgery. No response to any of these requests was received. The Veteran was provided VA examinations in April 2013 addressing the severity of his low back disability and peripheral neuropathy, as well as examinations to determine the nature and etiology of the claimed shoulder and hip disabilities. The case was then readjudicated in a June 2013 supplemental statement of the case (SSOC). Therefore, VA has complied with the remand orders of the Board. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER Entitlement to a rating in excess of 10 percent for degenerative disc disease of the lumbar spine is denied. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the right lower extremity for the period prior to June 27, 2013 is denied. Entitlement to a rating of 20 percent, but not higher, for peripheral neuropathy of the right lower extremity for the period beginning June 27, 2013 is granted. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the left lower extremity is denied. Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for a left shoulder disability is denied. Entitlement to service connection for a right hip strain is denied. Entitlement to service connection for a left hip strain is denied. REMAND The Board regrets further delay in this case, but finds that a remand is necessary with respect to the claim for entitlement to an initial compensable rating for bilateral hearing loss. The Veteran has undergone audiological treatment at the Augusta and Atlanta VAMCs throughout the claims period. The record indicates that he was provided audiograms at the VAMC to determine the severity of his service-connected hearing loss in November 2005, February 2007, August 2009, and June 2011; however, the results of these audiograms are not included in the record before the Board. Clinical reports from the VAMCs indicate that the audiograms are stored in an online database that are not part of the record and are not accessible by the Board. Where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Upon remand, copies of the November 2005, February 2007, August 2009, and June 2011 audiogram results must be obtained and associated with the Veteran's paper or virtual claims file. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain the results of the VA audiograms performed on November 9, 2005, February 26, 2007, August 27, 2009, and June 1, 2011. Associate copies of the audiograms with the Veteran's virtual or paper claims file. All attempts to obtain this evidence must be documented in the record. 2. Readjudicate the claim for an initial compensable rating for bilateral hearing loss. If the benefit sought on appeal is not fully granted, issue a SSOC before returning the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs