Citation Nr: 1323444	
Decision Date: 07/23/13    Archive Date: 08/01/13

DOCKET NO.  06-12 715	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1.  Entitlement to service connection for headaches.

2.  Entitlement to an initial rating in excess of 10 percent for a thoracolumbar spine strain.

3.  Entitlement to an initial rating in excess of 10 percent for  right acromioclavicular degenerative joint disease/chronic right shoulder strain.

4.  Entitlement to an initial rating in excess of 10 percent for right knee chondromalacia patella with moderately severe patellofemoral pain syndrome.

5.  Entitlement to an initial rating in excess of 10 percent for left knee chondromalacia patella with moderately severe patellofemoral pain syndrome.

6.  Entitlement to an initial rating in excess of 10 percent for left-side carpal tunnel syndrome.

7.  Entitlement to an initial rating in excess of 10 percent for right-side carpal tunnel syndrome.

8.  Entitlement to an initial compensable rating for left ear hearing loss.

9.  Entitlement to an initial compensable rating for hypertension.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Sarah Richmond, Counsel


INTRODUCTION

The Veteran had active military service from May 1984 to May 2004.

This matter comes to the Board of Veterans' Appeals (Board) from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which, inter alia, granted service connection and assigned initial 10 percent ratings for thoracolumbar spine strain, acromioclavicular degenerative joint disease/ chronic right shoulder strain, left knee chondromalacia with moderately severe patellofemoral pain syndrome, right knee chondromalacia with moderately severe patellofemoral pain syndrome, right upper extremity carpal tunnel syndrome, and left upper extremity carpal tunnel syndrome.  The RO also granted service connection and assigned noncompensable (i.e., 0 percent) ratings for left ear hearing loss and hypertension.  Each grant of service connection was made effective June 1, 2004, the day after the Veteran's separation from service.  

During the pendency of the appeal, the Veteran's claims file was transferred to the jurisdiction of the St. Louis RO.  

In his April 2006 VA Form 9 (substantive appeal), the Veteran requested a hearing before a Veterans Law Judge via teleconference.  In May 2009, the Board remanded the Veteran's appeal to schedule the requested hearing.  An April 2010 letter advised the Veteran that his hearing was scheduled in May 2010.  However, on the date of the scheduled hearing, the Veteran submitted a statement requesting withdrawal of his hearing request.  There are no outstanding hearing requests of record.  

In August 2010, the claims file was returned to the Board at which time the Board remanded the claim so that an attempt could be made to obtain a copy of the Veteran's retirement examination and so that proper VA notice could be provided.  The case was before the Board again in June 2012, at which time the Board remanded the issues on appeal for a third time so that additional attempts could be made to obtain a complete copy of the Veteran's service treatment records.  As discussed in more detail in the VCAA section below, the directives of the Board's remands have been substantially complied with.  The case is now ready for appellate review.


FINDINGS OF FACT

1.  The Veteran's migraine headaches were incurred in, or caused by, his military service.

2.  The Veteran's lumbar spine disability is manifested by forward flexion most severely limited to 65 degrees with the most severe combined range of motion to 180 degrees; an antalgic gait that was not specifically attributed to the Veteran's lumbar spine disability with no guarding or muscle spasm of the thoracolumbar spine; x-ray examination showing old fracture of L2 with narrowing of the L2-L3 disc space with no instability seen; and multi-level lumbar spondylosis and congenital canal stenosis, with no findings of abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.

3.  The Veteran's right shoulder disability is manifested by abduction most severely limited to 130 degrees, and flexion limited to 150 degrees due to pain, x-ray findings of degenerative joint disease of the acromioclavicular joint, and MRI findings of mild tendonitis of the supraspinous tendon.

4.  The Veteran's bilateral knee disabilities are manifested by, at most, range of motion from 0 to 130 degrees, which includes the additional loss of motion after repetition, painful motion, functional loss, diagnosis of chondromalacia patella of both knees with moderately severe patellofemoral pain syndrome, and one finding of slight instability of the right knee with additional findings of no instability or recurrent subluxation in either knee.    

5.  The Veteran's bilateral carpal tunnel syndrome is manifested by, at most, mild incomplete paralysis of the bilateral median and ulnar nerves, complaints of constant pain and tingling, with loss of grip strength during flare-ups, but normal strength, reflex, and sensory examination.

6.  The Veteran's left ear hearing loss is manifested by no more than Level I hearing with speech recognition scores no lower than 96 percent.
 
7.  The Veteran's hypertension requires continuous medication to control, but blood pressure readings do not demonstrate diastolic blood pressure readings of predominantly 100 or higher.


CONCLUSIONS OF LAW

1.  The criteria for service connection for migraine headaches have been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). 

2.  The criteria for an evaluation in excess of 10 percent for thoracolumbar spine strain are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Code 5237 (2013).

3.  The criteria for an evaluation in excess of 10 percent for acromioclavicular degenerative joint disease/ chronic right shoulder strain are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Codes 5201-5024 (2013).

4.  The criteria for an evaluation in excess of 10 percent for right knee chondromalacia patella with moderately severe patellofemoral pain syndrome are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Codes 5262-5024 (2013).

5.  The criteria for an evaluation in excess of 10 percent for left knee chondromalacia patella with moderately severe patellofemoral pain syndrome are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Codes 5262-5024 (2013).

6.  The criteria for an evaluation in excess of 10 percent for right carpal tunnel syndrome are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.124a, Diagnostic Code 8515 (2013).

7.  The criteria for an evaluation in excess of 10 percent for left carpal tunnel syndrome are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.124a, Diagnostic Code 8515 (2013).

8.  The criteria for an evaluation in excess of 0 percent for left ear hearing loss are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.85, 4.86, Diagnostic Code 6100 (2013).

9.  The criteria for an evaluation in excess of 0 percent for hypertension are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.104, Diagnostic Code 7101 (2013).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b).  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  RO letters dated in September 2004, March 2006, and August 2010 informed the Veteran of all three elements required by 38 C.F.R. § 3.159(b) as stated above.  In addition the March 2006 and August 2010 letters informed the Veteran of how VA determines a disability rating and effective date if service connection is awarded.  See Dingess v. Nicholson, 19 Vet. App. 473 (2006).  The claim was subsequently readjudicated in supplemental statements of the case dated from October 2008 to February 2013, thereby curing any timing defects pursuant to Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  The September 2004 letter does not address the hypertension disability.  However, upon closer review, the Veteran never actually filed a claim for service connection for hypertension.  The RO granted service connection for hypertension in the March 2005 rating decision based on an October 2004 VA examination, which demonstrated a diagnosis of hypertension that was within one year of the Veteran's separation from service.  As service connection for hypertension was granted by the RO without the Veteran actually filing a claim, there is no prejudice to the Veteran that he did not receive notice until the August 2010 letter, which addressed the initial rating claim for hypertension.

In this case, the Veteran is challenging the initial evaluation for his disabilities on appeal assigned following the grant of service connection.  In Dingess, the Court held that 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 section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Id. at 490-91.  Thus, because legally sufficient notice was provided in September 2004, March 2006, and August 2010 before the claim was subsequently readjudicated in supplemental statements of the case from October 2008 to February 2013, VA's duty to notify in this case has been satisfied. 

Regarding the duty to assist, the RO has obtained some of the Veteran's service treatment records and also afforded VA examinations in October 2004, February 2005, March 2005, and October 2012 to assess the disabilities on appeal.  38 C.F.R. § 3.159(c)(4).  The records satisfy 38 C.F.R. § 3.326.  

The Court has held that "in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report."  Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).  The Court's rationale for requiring an examiner to consider the functional effects of a Veteran's hearing loss pertained to cases where consideration of referral for an extra-schedular rating under 38 C.F.R. § 3.321(b) might be warranted.  Specifically, the Court noted that, "unlike the rating schedule for hearing loss, § 3.321(b) does not rely exclusively on objective test results to determine whether a referral for an extra[- ]schedular rating is warranted.  The Secretary's policy [requiring VA audiologists to describe the effect of a hearing disability on a Veteran's occupational functioning and daily activities] facilitates such determinations by requiring VA audiologists to provide information in anticipation of its possible application."  Id.  

Here, the October 2004 VA audiology examiner failed to address the functional effects of the Veteran's hearing loss, but the October 2012 VA examination report adequately addresses this issue.  The VA audiology examiner in October 2012 noted that the Veteran's left ear hearing loss caused him to occasionally miss what people were saying.  Therefore, while the October 2004 VA audiology examination is defective under Martinak, the Board finds that no prejudice results to the Veteran insofar as the functional effects of his hearing loss are adequately addressed by the entirety of the record and are sufficient for the Board to consider whether referral for consideration of an extra-schedular rating is warranted under 38 C.F.R. § 3.321(b). 

In August 2010 and June 2012 the Board remanded this case so that additional efforts could be made to obtain a report of the Veteran's Navy retirement examination.  In June 2012, the RO requested a copy of the Veteran's retirement examination that reportedly took place on February 24, 2004 from the Naval Medical Center in San Diego, CA and the San Diego Naval Base.  The RO also requested a copy of the retirement examination from the National Personnel Records Center (NPRC).  The request from the San Diego Naval Base was returned as undeliverable; a hand-written note, presumably from someone at the RO, notes that the request should not have been done as the San Diego Naval Base did not maintain the records.  The NPRC responded that there were no service treatment records on file at Code 13 for the Veteran.  A separate response from the NPRC notes that the requested record from the Naval Medical Center in San Diego in 2004 had not been retired to the NPRC.  The San Diego Naval Medical Center responded that a thorough search had failed to locate inpatient and outpatient records requested.  Specifically it was noted that there was no hospital record from February 1 to 28, 2004 and no outpatient treatment records from June 2009 to present for the Veteran.  

In December 2012, the RO emailed the Records Management Center (RMC) with a request for all available treatment records for the Veteran from February 1, 2004 to February 29, 2004.  A response indicates that all available records had been transferred to the RO in September 2012 and that there were no further records found/located at the RMC.  The RO notified the Veteran of its unsuccessful efforts to obtain a copy of his retirement examination from the San Diego Naval Medical Center in a December 2012 letter.  The RO requested that the Veteran send any records he had in his possession and that if they did not hear from him, the case would be decided.  The RO also issued a formal finding of unavailability regarding the retirement examination.  The RO has satisfied the requirements of 38 C.F.R. § 3.159 (e)(1) and it appears that any further efforts to obtain a copy of the Veteran's retirement examination would be fruitless.  

The duty to assist has therefore been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claim.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal.

Finally, in this decision, the Board grants service connection for migraine headaches.  This award represents a complete grant of the benefits sought on appeal.  Thus, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary. 

II.  Service Connection for Migraine Headaches

The Veteran seeks service connection for headaches.  He filed his claim in August 2004, a few months after his separation from service.  He underwent a VA examination in October 2004, at which time he was diagnosed as having migraine headaches.

Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during 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).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). 

A veteran may be granted service connection for any disease initially diagnosed after discharge, but only if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) . 

Certain chronic disabilities, including organic diseases of the nervous system, which includes migraine headaches, may be presumed to have been incurred in service if they become manifest to a degree of 10 percent or more within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  In this regard, the Board must assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991).  While the Board is not free to ignore the opinion of a treating physician, it is free to discount the credibility of that physician's statement.  See Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993); Sanden  v. Derwinski, 2 Vet. App. 97, 101 (1992).

The service treatment records show that the Veteran reported a head injury as a child which required stitches around his left eye.  Clinical evaluation of the head as well as neurological evaluation on the entrance examination in March 1984 was negative, however.  There is no clear and unmistakable evidence to rebut the presumption of soundness (i.e. clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service).  Thus, the Veteran is considered sound at entry into service and the relevant inquiry is whether his current headaches were incurred in service.

The Veteran mostly denied any complaints of headaches in service.  In April 1986, however, he complained of a massive headache lasting for about six hours.  In May 1986 he complained of photophobia in both eyes and orbital pain, but specifically denied any headaches.  An October 1993 treatment record also notes complaints of headaches with reading.  However, the Veteran denied headaches on treatment records dated in April 1995 and July 1998.  The Veteran's 2004 retirement examination is not of record, in spite of VA's efforts to obtain this report. 

After service, as noted above, an October 2004 VA examination report shows that the Veteran reported suffering from headaches since 1990.  He indicated that he had recurring headaches, which were migraines.  The attacks of pain were in the back of the head and extended around to the front on both sides.  The diagnosis provided was migraine headaches.  The subjective factors were severe headaches monthly; the objective factors were that there were no physical findings.  

The Veteran underwent another VA examination in October 2012.  The examiner noted that the Veteran was not treated for headaches while in service and that he was diagnosed as having migraine headaches in 2004.  He complained of occasional pressure at the posterior side of the head with good results.  There was no nausea or vomiting, photophobia or phonophobia.  He did not have incapacitating headaches and had not been hospitalized.  On physical examination it was determined that the Veteran did not have characteristic prostrating attacks of migraine headache pain.  After reviewing the claims file the examiner determined that the Veteran's headache condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.  The rationale was that the Veteran was not diagnosed with headaches nor treated for migraine headaches while in service. 

Notwithstanding the negative opinion above, as the Veteran is shown to have a diagnosis of migraine headaches in October 2004, which is within one year of his retirement from service in May 2004, his claim falls within the purview of the presumption for service connection for organic diseases of the nervous system, which includes migraine headaches.  See 38 C.F.R. § 3.309(a).  The October 2004 VA examiner noted that there were no physical findings of migraine headaches but diagnosed the Veteran with migraine headaches, nonetheless.  Later on the October 2012 VA examination, it was noted that the Veteran did not have any of the characteristic prostrating attacks of migraine headaches; but that the Veteran had been diagnosed as having migraine headaches in 2004.  The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110 (2012).  The Court has held that "this requirement is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim."  McLain v. Nicholson, 21 Vet. App. 319, 321 (2007).  Thus, while the objective findings of migraine headache symptoms are not clear, as the Veteran was diagnosed as having migraine headaches in October 2004, during the pendency of this appeal, the presence of a current migraine headaches disability is satisfied.

The rationale provided by the October 2012 examiner that the Veteran was not diagnosed or treated for headaches in service also is based on inaccurate data, as the Veteran did in fact complain of headaches during his military service, as evidenced by his service treatment records.  A medical opinion based on an inaccurate factual premise has no probative value.  Reonal v. Brown, 5 Vet. App. 4458, 460-61 (1993).  Additionally, the examiner did not consider the Veteran's competent and credible complaints of continued headache symptomatology since 1990.  See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Thus, the October 2012 VA assessment does not provide any probative, affirmative evidence to the contrary in rebuttal of the presumed relationship between the migraine headaches and service as contemplated under 38 C.F.R. § 3.307(d). 

In conclusion, the Board concludes that any reasonable doubt raised is resolved in the Veteran's favor, and finds that service connection for the Veteran's migraine headaches is warranted.

III.  Increased Ratings

In a March 2005 rating decision, the RO granted service connection for disabilities of the back, right shoulder, and bilateral knees, as well as carpal tunnel syndrome of the bilateral upper extremities, left ear hearing loss, and hypertension.  Each grant of service connection was made effective June 1, 2004, the day after the Veteran's separation from service.  

Disability ratings are based on the average impairment of earning capacity resulting from a disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013).  An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10.  Separate diagnostic codes identify the various disabilities.  Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7.  Otherwise, the lower rating will be assigned.  Id.  

In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present.  See 38 C.F.R. §§ 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 

In Fenderson v. West, 12 Vet. App 119 (1999), the United States Court of Appeals for Veterans Claims (Court) emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case, such as this one, in which a veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected.  VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating."  See also Hart v. Mansfield, 21 Vet. App 505 (2007).  In this case, there has not been a material change in the level of impairment in the left knee and uniform ratings are warranted. 

The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C.A. § 5107(a).  In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant.  Id.  

Under the anti-pyramiding provision of 38 C.F.R. § 4.14 , the evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided.  The Court held, in Esteban v. Brown, 6 Vet. App. 259 (1994), that for purposes of determining whether the appellant is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of, or overlapping with, the symptomatology of the other conditions. 

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology.  Any change in a diagnostic code by VA must be specifically explained.  Pernorio v. Derwinski, 2 Vet. App. 625 (1992). 

When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  

Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath, 1 Vet. App. at 592.  Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45).  Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above.  Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.

The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record.  Burton v. Shinseki, 25 Vet. App. 1 (2011).  

Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered.  DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995).  Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the veteran.  Johnston v. Brown, 10 Vet. App. 80, 85 (1997).  However, when the maximum rating for limitation of motion of a joint has already been assigned, a finding of pain on motion cannot result in a higher rating.  Id.   

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. 

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  




A.  Lumbar Spine Disability

The Veteran's lumbar spine disability is rated as 10 percent disabling under 38 C.F.R. § 4.71a, DC 5237 for lumbosacral strain.  Under the General Rating Formula for Diseases and Injuries of the Spine, 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 height warrants a 10 percent disability rating.  

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 warrants a 20 percent disability rating.  

Forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine warrants a 40 percent disability rating.

Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent disability rating.  Unfavorable ankylosis of the entire spine warrants a 100 percent disability rating.  38 C.F.R. § 4.71a, DC 5237 (2013).

Note (1):  Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.

Note (2):  (See also Plate V.)  For VA compensation purposes, normal flexion of the thoracolumbar is zero to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  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.  

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 six weeks during the past 12 months.  38 C.F.R. § 4.71a, Diagnostic Code 5243 (2013).  

An October 2004 VA examination report shows complaints of constant localized pain at the level of 4 out of 10.  The pain was elicited by physical activity and also by itself.  The Veteran also described one incapacitating episode per year, which would last for seven days.  The physician who recommended the bedrest was unknown.  The functional impairment was that he needed bedrest at times of severe flare of lumbar spine.  The condition did not result in any time lost from work.  On physical examination, range of motion of the lumbar spine was 0 to 90 degrees of flexion with pain starting at 80 degrees; extension to 30 degrees with pain starting at 20 degrees, and bilateral right and left flexion and rotation to 30 degrees.  The ranges of motion were not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination.  There was no ankylosis of the spine; nor were there signs of intervertebral disc syndrome.  Neurological examination of the lower extremities showed normal motor and sensory function.  Bilateral lower extremity reflexes were 1+ at the knees and ankles.  X-ray examination in October 2004 showed irregularity of the L2 vertebral body compatible with mild previous compression fracture and with some narrowing of the disk space at L2-L3.  The diagnosis was L2 compression fracture with chronic lumbar pain consistent with chronic strain.

A February 2005 VA examination report notes that an MRI performed in November 2003 showed multilevel lumbar spondylosis and also some congenital canal stenosis.  There was no root compression detected or sciatica type symptoms.  Sometimes the pain was incapacitating, which happened at least three or four times a year.  During those times he had to take a rest for at least a day.  He went to chiropractors on a regular basis but did not wear any devices like splints anywhere on the body.  Range of motion testing showed that forward flexion of the thoracolumbar spine was to 65 degrees without pain, and 75 degrees with pain.  Extension was to 25 degrees, beyond which there was pain.  He could not do lateral flexion or rotation beyond 35 degrees on both sides.  Straight leg raising was to 45 degrees on both sides.  Repeated motion did not change the range of motion but caused more stiffness and pain in the back, as well as weakness in motion, particularly forward flexion.  Straight leg raising diminished to 25 degrees on both sides by repeated motion.  He did not get any sciatic type pain during the examination; the flare-up factors were repeated motion.  There was mild tenderness over the lower lumbar spine region; no deformities were otherwise detected.  Neurological examination showed that motor strength and sensory appreciation in the lower extremities was normal.  Deep tendon reflexes also were normal at the knee and ankle jerks.  His gait was antalgic and was maintained unaffected.  The diagnosis was lower back pain due to lumbar spondylosis.

An October 2012 VA examination report shows that forward flexion was to 80 degrees with pain beginning at this point; extension was to 20 degrees with pain beginning at this point; and right and left lateral flexion was to 20 degrees with pain.  Right and left lateral rotation was to 30 degrees with pain.   These ranges of motion were performed after repetitive-use testing and no further limited motion was reported.  Functional loss in the thoracolumbar spine included less movement than normal, weakened movement, and pain on movement.  There was no localized tenderness or pain to palpation for the joints and/or soft tissue of the thoracolumbar spine.  There also was no guarding or muscle spasm of the thoracolumbar spine.  Muscle strength, reflex, and sensory testing in the lower extremities was normal.  The Veteran had no radicular pain or any other signs or symptoms due to radiculopathy.  There also were no other neurologic abnormalities or findings related to the thoracolumbar spine such as bowel or bladder problems/ pathologic reflexes.  In addition the Veteran did not have intervertebral disc syndrome.  Finally, he did not use any assistive device.  X-ray examination showed old fracture of L2 with narrowing of the L2-L3 disc space with no instability seen.  It was noted that the Veteran's thoracolumbar spine condition did not affect his ability to work.

These findings demonstrate that the Veteran is not entitled to a rating higher than 10 percent for his lumbar spine disability.  None of the objective findings demonstrate forward flexion limited more than 65 degrees.  Also, range of motion testing does not show less than 170 degrees of combined range of motion of the lumbar spine.  The most severe combined range of motion was to 180 degrees in October 2004.  Although it was noted in February 2005 that the Veteran had an antalgic gait, this was not specifically attributed to the Veteran's lumbar spine disability; and it is worth mentioning that the Veteran also has bilateral knee disabilities.  Regardless, in October 2012, it was specifically found that there was no guarding or muscle spasm of the thoracolumbar spine so as to cause any antalgic gait, as contemplated by the diagnostic criteria for a 20 percent rating.  In addition, while the Veteran had multi-level lumbar spondylosis and also some congenital canal stenosis, there were no findings of abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.

No additional compensation for functional loss resulting from factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. 202, 204-07 (1995) is warranted, as functional impairment due to pain has been addressed by the 10 percent rating assigned.  See also Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011) (Pain that affects some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," constitutes functional loss.).  The evidence does show that the Veteran experiences painful motion of the lumbar spine; however, it does not result in a separate and/or higher rating unless it actually results in additional functional loss.  See Mitchell, 25 Vet. App. at 38-43; DeLuca, 8 Vet. App. at 204-7.  Here, recent examination showed no additional loss of motion after repetition; most of the evidence of record shows forward flexion to 80 degrees with painful motion at the extremes.

The Veteran does not have intervertebral disc syndrome.  Therefore, a rating based on incapacitating episodes is not warranted.  Also there is no objective evidence of radiculopathy or other neurological impairment in the lower extremities as a result of the lumbar spine disability.  For this reason, a separate rating for neurological impairment associated with the lumbar spine disability is not applicable.

The Veteran genuinely believes that he is entitled to an increased rating for his lumbar spine disability.  His factual recitation as to symptomatology associated with the lumbar spine is accepted as true.  However, as a layperson, lacking in medical training and expertise, the Veteran cannot provide a competent opinion on a matter as complex as the present severity of his lumbar spine disability, and his views are far outweighed by the detailed opinions provided by the medical professionals who examined the Veteran's spine and discussed all relevant details for purposes of rating his disability.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

For all the foregoing reasons, the Board finds that a rating in excess of 10 percent is not warranted for the thoracolumbar spine disability.  There are no objective medical findings that would support the assignment of a higher rating.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  

B.  Right Shoulder Disability

The Veteran's right acromioclavicular degenerative joint disease and chronic right shoulder strain is rated as 10 percent disabling under 38 C.F.R. § 4.71a , DC 5201-5024 (limitation of motion of the arm-tenosynovitis).  Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27.  Under DC 5024, tenosynovitis will be rated on limitation of motion as degenerative arthritis under DC 5003.  See 38 C.F.R. § 4.71a , DC 5024 (2013).  Under DC 5003, degenerative arthritis, when established by x-ray findings, will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved.  When limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DCs, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion to be combined, not added under DC 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. See 38 C.F.R. § 4.71a , DC 5003.

DC 5201 provides a series of disability ratings for the major (or dominant) and minor (or non-dominant) sides of the body.  Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination.  Only one hand shall be considered dominant.  The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. 38 C.F.R. § 4.69.  Because the Veteran has reported consistently that he is right-hand dominant, only the ratings for the major (or dominant) side will be discussed in this decision.  In that regard, DC 5201 provides a minimum 20 percent rating for limitation of motion of the major arm at the shoulder level.  See 38 C.F.R. § 4.71a, DC 5201.  A 30 percent rating is assigned for limitation of motion of the arm midway between the side and shoulder level.  A maximum 40 percent rating is assigned for limitation of motion to 25 degrees from the major side.  Id.
 
Normal forward flexion of the shoulder is 0 to 180 degrees; abduction is 0 to 180 degrees; and internal and external rotation are from 0 to 90 degrees. 38 C.F.R. § 4.71a , Plate I.  Forward flexion and abduction to 90 degrees amounts to shoulder level.
 
An October 2004 VA examination report shows that range of motion in the right shoulder joint was to 180 degrees of flexion, 180 degrees of abduction, and 90 degrees of external and internal rotation.  Range of motion was not additionally limited by pain, fatigue, weakness, lack of endurance and incoordination.  Right shoulder x-rays were within normal limits.  The right shoulder joint's general appearance also was within normal limits.  

A February 2005 VA examination report notes that x-rays in October showed that he had degenerative joint disease of the acromioclavicular joint, even though the October 2004 VA examination report noted that x-rays of the right shoulder were actually normal, as noted above.  The Veteran complained of chronic pain in the shoulder that was worsened by lifting anything above the level of 90 degrees, and any repeated motion.  Sometimes the pain became more severe and felt over the deltoid region side.  He also would get impingement symptoms.  Prolonged driving with steering wheel movements and use of the home computer caused pain.  Range of motion testing showed that right shoulder abduction was to 130 degrees and flexion was to 150 degrees.  He could not do anymore of these movements because of stiffness and pain.  Internal rotation was to 90 degrees and external rotation was to 70 degrees on both sides.  Repeated motion did not change the range of motion but caused more stiffness, weakness, and fatigue.  His right shoulder could extend to 30 degrees but circumduction was not possible with that shoulder.  There was weakness; strength was only 3 out of 5 in external rotation, abduction, and flexion above 90 degrees.  He had right-side moderate rotator cuff strain with acromioclavicular degenerative joint disease, which had been detected on previous x-rays.  The diagnosis was right shoulder acromioclavicular degenerative joint disease and chronic right shoulder strain.

An October 2012 VA examination report notes that imaging showed moderate degenerative changes in the right acromioclavicular joint.  Forward flexion of the right shoulder was to 150 degrees with pain beginning at this point.  Right shoulder abduction was to 130 degrees with pain beginning at this point.  The Veteran was able to perform repetitive-use testing and after a minimum of three repetitions the range of motion in the right shoulder remained unchanged.  Functional loss in the right shoulder included less movement than normal, weakened movement, and pain on movement.  There was no localized tenderness or pain on palpation of the joints, soft tissue, biceps, or tendons of the right shoulder.  The Veteran also did not have any guarding.  Muscle strength testing was 5 out of 5 on right shoulder abduction and forward flexion.  There was no ankylosis.  Testing for rotator cuff conditions was negative.  There was no history of mechanical conditions such as clicking, or catching, etc.   It was noted that an MRI in 2011 showed mild tendonitis of the supraspinous tendon; partial tear could not be ruled out.  There was a small amount of fluid surrounding the biceps tendon; and a mild tenosynovitis should be considered.  There also was early degenerative arthritis of the acromioclavicular joint.  Finally, it was noted that the right shoulder disability did not impact the Veteran's ability to work.

These findings demonstrate that a compensable rating is not warranted for limitation of motion of the right shoulder under DC 5201.  The right shoulder was most severely limited to 130 degrees of abduction and 150 degrees of flexion, which is not nearly so severe as 90 degrees (i.e., at shoulder level), which is the requirement for warranting a minimum 20 percent rating under DC 5201.  These limitations also consider pain, and signify where the painful motion started for the Veteran.  While the Veteran reportedly could not do some of the repetitive use testing for abduction and flexion due to stiffness and pain on examination in February 2005, it was noted that other ranges of motion did not result in any additional limitations in motion after repetitive use testing, but did result in increased stiffness, weakness, and fatigue.  The October 2012 examination notes, however, that repetitive use testing did not result in any additional limitation of motion.  Nonetheless, the right shoulder did have some limitation of motion that was objectively observed and findings of degenerative arthritis; thus, a 10 percent rating is warranted under DC 5003.  No additional compensation for functional loss resulting from factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. 202, 204-07 (1995) is warranted, as functional impairment due to pain has been addressed by the 10 percent rating assigned. See also Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011) (Pain that affects some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," constitutes functional loss.).  

None of the other rating criteria under 38 C.F.R. § 4.71a pertaining to the shoulder and arm apply.  The medical evidence does not show impairment of the clavicle or scapula resulting in malunion, nonunion, or dislocation, as contemplated under DC 5203.  There is no evidence of impairment of the humerus including malunion, recurrent dislocation, fibrous union, nonunion, or loss of head of humerus (flail shoulder), as addressed by DC 5202.  Additionally, there is no ankylosis of the scapulohumeral articulation, as considered by DC 5200.

The Veteran genuinely believes that he is entitled to an increased rating for his right shoulder disability.  His factual recitation as to symptomatology associated with the right shoulder is accepted as true.  However, as a layperson, lacking in medical training and expertise, the Veteran cannot provide a competent opinion on a matter as complex as the present severity of his right shoulder disability, and his views are far outweighed by the detailed opinions provided by the medical professionals who examined the Veteran's shoulder and discussed all relevant details for purposes of rating his disability.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

For all the foregoing reasons, the Board finds that a rating in excess of 10 percent is not warranted for the right shoulder disability.  There are no objective medical findings that would support the assignment of a higher rating.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  

C.  Bilateral Knee Disabilities

The Veteran's bilateral knee chondromalacia with moderately severe patellofemoral pain syndrome is rated as 10 percent disabling under 38 C.F.R. § 4.71a, DCs 5262-5024, for impairment of the tibia and fibula due to tenosynovitis.  As noted above in addressing the right shoulder disability, hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27.  Under DC 5024, tenosynovitis will be rated on limitation of motion as degenerative arthritis under DC 5003.  See 38 C.F.R. § 4.71a , DC 5024 (2013).  Under DC 5003, degenerative arthritis, when established by x-ray findings, will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved.  When limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DCs, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion to be combined, not added under DC 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. See 38 C.F.R. § 4.71a , DC 5003.

Under DC 5262 addressing impairment of the tibia and fibula, malunion of the tibia and fibula with slight knee or ankle disability warrants a 10 percent rating; malunion of the tibia and fibula with moderate knee or ankle disability warrants a 20 percent rating; and malunion of the tibia and fibula with marked knee or ankle disability warrants a 30 percent rating.  Finally, nonunion of the tibia and fibula with loose motion requiring a brace warrants a 40 percent rating.

Where the veteran has limited motion, 38 C.F.R. § 4.71a  DC 5260 and 5261 provide ratings for limitation of flexion and extension of the knee, respectively.  Under DC 5260, a noncompensable rating is assigned when flexion is limited to 60 degrees, a 10 percent rating is assigned when flexion is limited to 45 degrees, and a 20 percent rating is assigned when flexion is limited to 30 degrees.  Under DC 5261, a noncompensable rating is assigned when extension is limited to 5 degrees, a 10 percent rating is assigned when extension is limited to 10 degrees, and a 20 percent rating is assigned when extension is limited to 15 degrees. 

By way of reference, normal range of motion in the knees is from 0 degrees of extension to 140 degrees of flexion.  38 C.F.R. § 4.71a, Plate II.

An October 2004 VA examination report shows that the Veteran complained of constant pain in both knees, which would become worse with activity.  The symptoms did not cause incapacitation.  On physical examination range of motion of the knee was from 0 degrees of extension to 140 degrees of flexion.  Range of motion in both knees was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination.  The McMurray's test on the right knee was abnormal with slight instability; on the left knee, the McMurray's test was normal.  Examination of the right knee revealed crepitus.  The Drawer test on both knees was within normal limits.  X-ray examination showed no abnormality of either the right or left knee.  For diagnoses of the knees, it was noted that a diagnosis was not possible, because of the non-specific findings on the examination, and that an MRI would be needed to rule out internal derangement of the knee joints.  

A February 2005 VA examination report shows the Veteran reported ongoing knee pain.  Sometimes the knees would crack, but there was no locking or giving out.  His knees bothered him at work which required him to take a break every two hours, but he had not absented himself from work because of his knees.  His knees also bothered him climbing stairs and driving long distances and sometimes the knees would swell.  On examination he walked with an antalgic gait.  His knee movement ranged from 0 to 130 degrees on both sides.  On repeated motion he started getting pain at 110 degrees on both sides, and the pain would progressively increase but he could complete the range of motion up to 125 degrees with pain from 110 to 125 degrees.  During these movements the knee would become slightly stiffer more on the right side than the left with some crepitus.  Patellar pressure caused tenderness on both sides.  There was no evidence of any laxity by Lachman's test, and anterior and posterior Drawer test.  There also was no evidence of any effusion at this time.  In addition there was no evidence of any active inflammation like redness, increased warmth, and local tenderness with swelling.  Mild tenderness was present over the medial semilunar cartilages on both sides other than patellar pressure.  There was no Baker's cyst felt.  There also was no abnormal mobility noticed either anteroposteriorly or sideways.  There was increasing crepitus on motion and repeat motions.  The diagnosis was right and left knee moderate chondromalacia with moderately severe patellofemoral pain syndrome.  The examiner did not think that an MRI was necessary to make this diagnosis.  It was noted that x-rays were normal.

An October 2012 VA examination report notes complaints of occasional pain in the knees with no paresthesias or numbness.  X-ray examination of the left knee revealed mild to moderate calcific tendinitis of the patella.  Range of motion testing showed that right knee flexion was to 140 degrees or greater with no objective evidence of painful motion.  Right knee extension was to 0 degrees with no objective evidence of painful motion.  Left knee flexion was to 140 degrees with no objective evidence of painful motion.  Left knee extension was to 0 degrees with no objective evidence of painful motion.  After repetitive use testing ranges of motion in the both knees were from 0 degrees of extension to 130 degrees of flexion.  Functional impairment included less movement than normal and pain on movement.  Strength testing was normal in both knees on flexion and extension.  Anterior instability tests also were normal on both knees.  There was no evidence or history of recurrent patellar subluxation/ dislocation and the Veteran did not use any assistive devices for walking.

Taking pain on motion into consideration, as required by DeLuca, at most, the Veteran has motion of his knees from 0 to 130 degrees (as reported in October 2012), which includes the additional loss of motion after repetition.  This range of motion finding does not warrant even a noncompensable rating for limitation of extension (i.e., extension limited to 5 degrees) under DC 5261.  It also does not meet even the criteria for a noncompensable rating for limitation of flexion (i.e., flexion limited to 60 degrees) under DC 5260.  In addition there is no x-ray evidence of degenerative arthritis.  Therefore, a rating of 10 percent for limitation of motion due to arthritis of the knees is not appropriate under DC 5003/5260.  

Nonethless evidence still shows painful motion with a finding of moderately severe patellofemoral pain syndrome and functional loss.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995).  In October 2004 it also was noted that McMurray's testing on the right knee was abnormal with slight instability.  As the Veteran has been diagnosed with chondromalacia patella of both knees with moderately severe patellofemoral pain syndrome, and the evidence demonstrates painful motion, this warrants, at most, a 10 percent rating under DC 5262 for impairment of the tibia and fibula with malunion and slight knee disability.  

A rating higher than 10 percent is not warranted under DC 5262, as the medical evidence does not demonstrate that there is any malunion of the tibia and fibula with moderate knee disability.  Notwithstanding the finding in 2004 of moderately severe patellofemoral pain syndrome, in October 2012, it was found that there was no instability or recurrent subluxation in either knee.  Strength testing was normal; and the Veteran also did not use any assistive devices for walking.  The evidence does show that the Veteran experiences painful motion of the knees; however, it does not result in a separate and/or higher rating unless it actually results in additional functional loss.  See Mitchell, 25 Vet. App. at 38-43; DeLuca, 8 Vet. App. at 204-7.  Here, recent examination showed additional loss of motion after repetition but this was still only from 0 to 130 degrees, with painful motion at the extreme of flexion.  Therefore, the disability in the knees is no more than slight.

In addition to the ratings based on limitation of motion, a separate rating may be assigned for instability of the knee.  See VAOPGCPREC 23-97.  Under Diagnostic Code 5257, a 10 percent rating is assigned slight recurrent subluxation or lateral instability; a 20 percent rating is assigned for moderate recurrent subluxation or lateral instability; and a 30 percent rating is assigned for severe recurrent subluxation or lateral instability.  In this case, however, the Veteran's rating is not based on limitation of motion, but rather on a slight knee disability with impairment of the tibia and fibula.  The 10 percent rating that is assigned under DC 5262 contemplates any instability of the knees and to assign a separate 10 percent rating for slight left knee instability under DC 5257 would constitute pyramiding under 38 C.F.R. § 4.14, which is prohibited.  The Veteran also would not be entitled to a rating higher than 10 percent under DC 5257, as the evidence at most only shows slight instability in the right knee.  The most recent examination in October 2012 does not indicate any instability or recurrent subluxation of the knees.

The Veteran genuinely believes that he is entitled to increased ratings for his bilateral knee disabilities.  His factual recitation as to symptomatology associated with the knees is accepted as true.  However, as a layperson, lacking in medical training and expertise, the Veteran cannot provide a competent opinion on a matter as complex as the present severity of his bilateral knee disabilities, and his views are far outweighed by the detailed opinions provided by the medical professionals who examined the Veteran's knees and discussed all relevant details for purposes of rating his disabilities.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

For all the foregoing reasons, the Board finds that ratings in excess of 10 percent are not warranted for the bilateral knee disabilities.  There are no objective medical findings that would support the assignment of a higher rating.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  

D.  Carpal Tunnel Syndrome

The Veteran's left and right side carpal tunnel syndrome is rated as 10 percent disabling under 38 C.F.R. § 4.124a, DC 8515.  Under DC 8515, for mild incomplete paralysis of the median nerve of the major or minor hand, a 10 percent rating is assigned.  For moderate incomplete paralysis of the median nerve of the major hand a 30 percent rating is assigned, and for the minor hand a 20 percent rating is assigned.  For severe incomplete paralysis of the median nerve of the major hand a 50 percent rating is assigned, and for the minor hand a 40 percent rating is assigned.  Finally, for complete paralysis of the median nerve of the major hand, which contemplates the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; pain with trophic disturbances, a 70 percent rating is assigned, and for the minor side a 60 percent rating is assigned. 38 C.F.R. § 4.124a, DC 8515. 

The Board notes that, in rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120.  Additionally, the Board notes that, under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function.  With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves.  The schedule of ratings does not define the terms "moderate" and "severe;" rather than applying a mechanical formula to make a determination, the Board evaluates all of the evidence such that decisions are "equitable and just."  38 C.F.R. § 4.6. 

The term "incomplete paralysis," with respect to nerve injuries, indicates a degree of loss or impaired function substantially less than the type pictured for "complete paralysis" given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a, Note.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. See id.  The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis. 38 C.F.R. § 4.123.  The maximum rating to be assigned for neuralgia, usually characterized by a dull and intermittent pain of typical distribution so as to identify the nerve, will be that equal to moderate incomplete paralysis.  38 C.F.R. § 4.124. 

An October 2004 VA examination report shows the Veteran had complaints of tingling and numbness of the fingers at the entire surface of all fingers.  He had no weakness of the fingers.  The symptoms occurred intermittently, sometimes as often as daily, with each occurrence lasting 5 to 10 minutes.  The ability to perform daily functions during flare-ups was that he could not grip or hold items during a flare-up.  He had not lost any time from work.  It was noted that the Veteran was right-hand dominant, as he used his right hand to write, eat, and comb his hair.  It also was noted that carpal tunnel syndrome symptoms needed to be followed up by EMG testing to verify diagnosis.

The Veteran later underwent EMG testing in March 2005, which demonstrated bilateral mild to moderate carpal tunnel syndrome (slightly worse on the left compared to the right).

An October 2012 VA examination report shows mild pain, paresthesias and/or dysesthesias, and numbness in the right and left upper extremities.  Muscle strength testing was 5 out of 5 in elbow and wrist extension and flexion, as well as grip strength and pinch (thumb to index finger).  Reflex and sensory examination was normal in the upper extremities.  Phalen's and Tinel's signs were positive in the bilateral upper extremities.  Testing of the median and ulnar nerves showed mild incomplete paralysis in the bilateral upper extremities.  Testing of the radial, musculocutaneous, circumflex, long thoracic, upper radicular, middle radicular, and lower radicular nerves was normal.  Finally it was noted that the Veteran's peripheral nerve condition and/or peripheral neuropathy did not impact his ability to work.

The Board finds that, based on the evidence of record, the Veteran's bilateral carpal tunnel syndrome does not warrant ratings higher than 10 percent under 38 C.F.R. § 4.124a, DC 8515.  The medical evidence shows at most mild incomplete paralysis of the bilateral median and ulnar nerves.  Strength, reflex, and sensory examination was normal, although the Veteran reported on examination in 2004 that he could not grip things during flare-ups of his carpal tunnel syndrome.  While it was noted that the Veteran's carpal tunnel syndrome was slightly worse on the left side, the difference in severity of symptoms is not shown to be significant enough as to warrant different ratings.  The Veteran has mild problems with symptoms associated with his carpal tunnel syndrome, but the impairment is more closely analogous to mild incomplete paralysis, rather than moderate incomplete paralysis. In spite of complaints of constant pain and tingling, the Veteran is still able to hold things in his hands, although he reported that he could not grip things during a flare-up.  Moreover, the involvement of the left median and ulnar nerve is primarily sensorial, causing numbness and diminished sensation, but resulting in no paralysis. There is no medical evidence that the 10 percent ratings assigned do not adequately compensate the Veteran for his functional limitations. 

While both the median and ulnar nerves are affected by the service-connected carpal tunnel syndrome, separate neurological ratings for each group of nerves or digits is not warranted, as the impairment associated with each area of the hand and wrist affects the same function of weakness in grip strength and pain in the hands and wrists.  To compensate the Veteran multiple times for the same impairment is prohibited under VA law.  See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 

The Veteran genuinely believes that he is entitled to increased ratings for his bilateral carpal tunnel syndrome.  His factual recitation as to symptomatology associated with the carpal tunnel syndrome is accepted as true.  However, as a layperson, lacking in medical training and expertise, the Veteran cannot provide a competent opinion on a matter as complex as the present severity of his carpal tunnel syndrome, and his views are far outweighed by the detailed opinions provided by the medical professionals who examined the Veteran's upper extremities and discussed all relevant details for purposes of rating his disabilities.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

For all the foregoing reasons, the Board finds that ratings in excess of 10 percent are not warranted for the bilateral carpal tunnel syndrome.  There are no objective medical findings that would support the assignment of a higher rating.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  

E.  Left Ear Hearing Loss

The Veteran's hearing loss has been evaluated under 38 C.F.R. § 4.85, DC 6100 (2012).  This diagnostic code sets out the criteria for evaluating hearing impairment using pure tone threshold averages and speech discrimination scores.  Numeric designations are assigned based upon a mechanical use of tables found in 38 C.F.R. § 4.85; there is no room for subjective interpretation.  See Acevedo-Escobar v. West, 12 Vet. App. 9, 10 (1998); Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

Audiometric results are matched against Table VI to find the numeric designation, then the designations are matched with Table VII to find the percentage evaluation to be assigned for the hearing impairment.  To evaluate the degree of disability for service-connected hearing loss, the Rating Schedule establishes 11 auditory acuity levels, designated from level I for essentially normal acuity, through level XI for profound deafness. 38 C.F.R. § 4.85.  When impaired hearing is service connected in one ear only, the non- service-connected ear will be assigned a designation of level I from Table VII. 38 C.F.R. § 4.85(f).

The provisions of section 4.86 address exceptional patterns of hearing loss, which are defined as when each of the pure tone thresholds at 1000, 2000, 3000, and 4000 hertz (Hz) are 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz. 38 C.F.R. § 4.86.

On the authorized VA audiological evaluation in October 2004, pure tone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
Average
LEFT
5
5
25
40
19

Speech audiometry revealed speech recognition ability of 100 percent in the left ear.  

The results of the October 2004 audiogram show an average pure tone threshold of 19 decibels in the left ear with speech recognition ability of 100 percent.  Exceptional patterns of hearing loss are not shown in the left ear, pursuant to 38 C.F.R. § 4.86(a), as each of the pure tone thresholds at 1000, 2000, 3000, and 4000 hertz (Hz) is not 55 decibels or more; nor is pure tone threshold at 30 dB at 1000 Hz and 70 dB at 2000 Hz.  Table VI indicates a numeric designation of I for the left ear.  Since impaired hearing is service-connected only in the left ear, the non-service-connected right ear will be assigned a Roman numeral designation for hearing impairment of I also.  38 C.F.R. § 4.85(f).  The point of intersection on Table VII reflects the level of hearing loss is consistent with a 0 percent evaluation.

On the authorized VA audiological evaluation in October 2012, pure tone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
Average
LEFT
10
10
35
40
24

Speech audiometry revealed speech recognition ability of 96 percent in the left ear.  

The results of the October 2012 audiogram show an average pure tone threshold of 24 decibels in the left ear with speech recognition ability of 92 percent.  Once again, exceptional patterns of hearing loss are not shown in the left ear, pursuant to 38 C.F.R. § 4.86(a).  Also, since the right ear is not service-connected it is given a level I hearing loss impairment under 38 C.F.R. § 4.85(f).  Table I indicates a numeric designation of I for the left ear.  As noted, the point of intersection on Table VII reflects the level of hearing loss is consistent with a 0 percent evaluation.

The Veteran asserts that he is entitled to a higher rating for his left ear hearing loss disability because he has difficulty hearing what people are saying.  To the extent that his hearing is impaired, the fact that the Veteran's hearing acuity is less than optimal does not by itself establish entitlement to a higher disability rating.  To the contrary, it is clear from the Rating Schedule that a higher rating can be awarded only when loss of hearing has reached a specified measurable level.  The medical evidence does not support the assignment of a rating higher than 0 percent for the left ear hearing loss.  To the extent that the Veteran asserts entitlement to a higher rating for his hearing loss, while we sympathize with the Veteran's complaints, entitlement to an evaluation in excess of 0 has not been demonstrated in the present case.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

For all the foregoing reasons, the Board finds that the evidence does not support the assignment of a rating in excess of 0 percent for left ear hearing loss.  Therefore, entitlement to an increased rating for the impairment associated with left ear hearing loss is not warranted.  

To the extent that the Veteran has contended that his left ear hearing loss is more severely impaired than the rating assigned, the preponderance of the evidence is against the claim; and the benefit of the doubt doctrine is not applicable.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

F.  Hypertension

The Veteran's hypertension is rated as 0 percent disabling under 38 C.F.R. § 4.104, Diagnostic Code 7101, for hypertensive vascular disease (hypertension and isolated systolic hypertension).  An evaluation of 10 percent is warranted when diastolic pressure is predominantly 100 or more, or systolic pressure predominantly 160 or more.  A minimum evaluation also is warranted for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control.  An evaluation of 20 percent is warranted when diastolic pressure is predominantly 110 or more, or; systolic pressure predominantly 200 or more.  An evaluation of 40 percent is warranted when diastolic pressure is predominantly 120 or more.  An evaluation of 60 percent is warranted when diastolic pressure is predominantly 130 or more.  Where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2013).

Note (1) to DC 7101 provides that: Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days.  For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm.

Note (2) to DC 7101 provides that: Hypertension due to aortic insufficiency of hyperthyroidism, which is usually the isolated systolic type, should be evaluated as part of the condition causing it rather than by a separate evaluation. 38 C.F.R. § 4.104, DC 7101 (2013).

An October 12, 2004 VA examination report shows blood pressure readings of 114/70, 130/104, and 128/90.  On October 13, 2004, his blood pressure readings again were 114/70, 130/104, and 128/90.  On October 15, 2004, his blood pressure readings were 126/90, 118/86, and 114/92.  The diagnosis was hypertension, not on medication.

An October 2012 VA examination report shows the Veteran reported that his average blood pressure was usually 125-128/80.  It was further noted that he was on Amlodipine and a low salt diet with good control.  It was noted that the Veteran's treatment plan included taking continuous medication for hypertension.  The examiner also noted that the Veteran did not have a history of diastolic blood pressure elevation to predominantly 100 or more.  Blood pressure readings on October 12, 2012 were 127/83, 122/79, and 123/83.  The examiner noted that the Veteran's hypertension did not impact his ability to work.

These findings do not demonstrate that a compensable rating is warranted for the Veteran's hypertension.  While the most recent examination in October 2012 indicates that the Veteran's hypertension requires continuous medication to control, his previous readings do not demonstrate diastolic blood pressure readings of predominantly 100 or higher.  The October 2004 VA examination demonstrates the following diastolic blood pressure readings: 70, 104, 90, 70, 104, 90, 90, 86, and 92.  As only two out of the nine diastolic blood pressure readings were over 100, it is not shown that the predominant blood pressure reading was 100 or higher.  Since the criteria for a compensable rating for hypertension are not met under DC 7101, a noncompensable rating is more appropriate.  See 38 C.F.R. § 4.31.

The Veteran asserts that he is entitled to a higher rating for his hypertension.  The fact that the Veteran has hypertension does not by itself establish entitlement to a higher disability rating.  To the contrary, it is clear from the Rating Schedule that a higher rating can be awarded only when hypertension has reached a specified measurable level.  The medical evidence does not support the assignment of a rating higher than 0 percent for hypertension.  To the extent that the Veteran asserts entitlement to a higher rating for his hypertension, while we sympathize with the Veteran's complaints, entitlement to an evaluation in excess of 0 has not been demonstrated in the present case.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

For all the foregoing reasons, the Board finds that the evidence does not support the assignment of a rating in excess of 0 percent for hypertension.  Therefore, entitlement to an increased rating for the impairment associated with hypertension is not warranted.  

The Board also has considered whether consideration of total disability rating based on individual unemployability (TDIU), pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) is warranted.  However, there is insufficient evidence in the record that any of the Veteran's service-connected disabilities have rendered him unemployable either separately or in combination with each other.  The October 2004 VA examination report notes that the Veteran was employed as a long-haul truck driver and that his carpal tunnel syndrome caused his hands to numb and he would have to shake them at time to get the feeling back.  He also complained of pain in the right shoulder, knees, and lumbar spine with prolonged driving.  Nonetheless he was still able to work and reported no lost time from work as a result of these disabilities.  The October 2012 VA examination report specifically found that the Veteran's headaches, back disability, right shoulder disability, bilateral knee disability, hypertension, and carpal tunnel syndrome did not affect the Veteran's ability to work.  It was noted that the Veteran's hearing loss affected his daily life and work in that he was not able to hear very well; however, this does not demonstrate that the Veteran has been rendered unemployable as a result of the hearing loss disability.  As the issue of entitlement to a TDIU has not been raised by the evidence of record, it is inapplicable in this case.

IV.  Extraschedular Consideration 

The rating schedule represents as far as is practicable, the average impairment of earning capacity.  Ratings will generally be based on average impairment.  See 38 C.F.R. § 3.321(a), (b) (2013).  To afford justice in exceptional situations, an extraschedular rating can be provided.  See 38 C.F.R. § 3.321(b). 

The Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted in Thun v. Peake, 22 Vet. App. 111   (2008).  First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. 

The Veteran's headaches, back disability, right shoulder disability, bilateral knee disability, and carpal tunnel syndrome cause functional impairment due to pain and weakness.  The October 2012 VA examination report also noted that the Veteran had difficulty hearing others, although wearing hearing aids helped.  None of these factors, however, denote an exceptional or unusual disability picture.  The symptoms associated with the Veteran's disabilities are not shown to cause any impairment that is not already contemplated by the rating criteria.  For these reasons, referral for consideration of an extraschedular rating is not warranted for this claim.  See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).  


ORDER

Entitlement to service connection for headaches is granted.

Entitlement to an initial rating in excess of 10 percent for a back disorder is denied.

Entitlement to an initial rating in excess of 10 percent for a right shoulder disorder is denied.

Entitlement to an initial rating in excess of 10 percent for a left knee disorder is denied.

Entitlement to an initial rating in excess of 10 percent for a right knee disorder is denied.

Entitlement to an initial rating in excess of 10 percent for left-side carpal tunnel syndrome is denied.

Entitlement to an initial rating in excess of 10 percent for right-side carpal tunnel syndrome is denied.

Entitlement to an initial compensable rating for left ear hearing loss is denied.

Entitlement to an initial compensable rating for hypertension is denied.



______________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs