Citation Nr: 1324237 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 07-14 530 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to service connection for a cervical spine disability. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to an initial rating in excess of 30 percent before September 16, 2011 and in excess of 60 percent effective September 16, 2011 for service-connected hypertensive heart disease. 4. Entitlement to an evaluation in excess of 10 percent before March 9, 2011 and in excess of 20 percent effective March 9, 2011 for a service-connected left shoulder disability. 5. Entitlement to a compensable evaluation for service-connected bilateral hearing loss. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from March 1958 to September 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision by which the RO, in pertinent part, declined to grant increased ratings for service-connected bilateral hearing loss and for a service-connected left shoulder disability, denied entitlement to service connection for a right knee disability, declined to reopen a claim of entitlement to service connection for a cervical spine disability, and granted service connection for hypertensive heart disease. Regarding hypertensive heart disease, the Veteran contested the initial 30 percent evaluation assigned. In February 2011, the Board reopened the issue of entitlement to service connection for a cervical spine disability and remanded it along with the other issues on appeal to the RO for further development of the evidence, which has been accomplished as directed with respect to the issues decided herein, and the Board concludes that it may proceed with a decision regarding these issues at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). In February 2011, the Board referred the issues of whether new and material evidence, sufficient to reopen a claim of service connection for a low back disability, has been received and entitlement to a total disability rating based on individual unemployability (TDIU) to the Agency of Original Jurisdiction (AOJ) for appropriate action. There is no indication that the AOJ (in this case the RO) undertook any action regarding the foregoing issues, and the Board reminds the AOJ to take the appropriate action. In an October 2011 rating decision, the RO assigned an increased rating for the service-connected hypertensive heart disease. In a March 2013 rating decision, the RO assigned an increased rating for the service-connected left shoulder disability. Although each increase represents a grant of benefits, the United States Court of Appeals for Veterans Claims (Court) has held that a decision awarding a higher rating, but less that the maximum available benefit, does not abrogate the pending appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). Thus, these matters continue before the Board. In July 2010, the Veteran testified at a hearing before the undersigned at the RO. A complete transcript of the hearing has been associated with the record. The issues of entitlement to service connection for a cervical spine disability and entitlement to service connection for a right knee disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Before September 16, 2011, the Veteran's service-connected hypertensive heart disease was manifested by no more than a workload of eight METS with left ventricular hypertrophy, and effective September 16, 2011, the Veteran's service-connected hypertensive heart disease has been manifested by no more than a workload of greater than three but not greater than five METS. 2. Before March 9, 2011, the Veteran's service-connected left (minor) shoulder disability was manifested by pain to include pain on motion, occasional flare-ups, and left upper extremity range of motion that was greater than midway between the side and shoulder level; effective March 9, 2011, the Veteran's left (minor) shoulder disability has been manifested by no more than pain on motion, flare-ups, and limitation of motion that was not restricted to 25 degrees from the side. 3. The Veteran's service-connected bilateral hearing loss is manifested by no more than Level II hearing loss in the right ear and Level II hearing loss in the left ear. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability evaluation in excess of 30 percent before September 16, 2011 and in excess of 60 percent effective September 16, 2011 for the Veteran's service-connected hypertensive heart disease have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code 7005-7007. 2. The criteria for entitlement to a disability evaluation in excess of 10 percent before March 9, 2011 and in excess of 20 percent effective March 9, 2011 for the Veteran's service-connected left shoulder disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.71, 4.71a Diagnostic Codes 5020, 5201 (2012). 3. The criteria for a compensable evaluation for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.85, Diagnostic Code 6100, 4.86 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. With respect to the issue of a higher initial disability rating for hypertensive heart disease, it arises from disagreement with the initial evaluation following the grant of service connection for that disability. The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement). Regarding entitlement to increased ratings for a service-connected left shoulder disability and service-connected bilateral hearing loss, the Board has concluded that the notice requirements of VCAA have been satisfied. The RO sent the Veteran a letter in October 2005 that informed of the requirements needed to establish increased evaluations for bilateral hearing loss. The notice letter advised the Veteran that VA used a published schedule for rating disabilities that determined the rating assigned and that evidence considered in determining the disability rating included the nature and symptoms of the condition, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment. In accordance with the requirements of VCAA, the VA letter informed the Veteran what evidence and information he was responsible for obtaining and the evidence that was considered VA's responsibility to obtain. The Board finds that all necessary development has been accomplished; therefore, appellate review may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claims. 38 U.S.C.A. § 5103A. VA has obtained the available service treatment records, VA clinical records, private medical records, and the Veteran's statements to include his hearing testimony. The Veteran has been afforded adequate VA medical examination on the issues decided herein. The VA examination reports, in the aggregate, are based on a history provided by the Veteran, a review of the record, necessary tests, and complete physical examinations with clinical measures were conducted. Conclusions reached and diagnoses given were consistent with the examination reports. For these reasons, the Board finds that the Veteran has been afforded adequate examinations on the issues decided herein. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Standard of Review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 ; 38 C.F.R. § 4.3 (reasonable doubt to be resolved in veteran's favor). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Increased Ratings Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Hypertensive heart disease The Veteran's service-connected hypertensive heart disease has been rated 30 percent disabling before September 16, 2011 and 60 percent disabling effective September 16, 2011 by the RO under the provisions of Diagnostic Code 7005-7007. 38 C.F.R. § 4.104. For rating diseases of the heart, one MET (metabolic equivalent) is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for rating, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. 38 C.F.R. § 4.104, Note 2. Diagnostic Code 7005 provides ratings for arteriosclerotic heart disease (coronary artery disease), and requires documented coronary artery disease. Arteriosclerotic heart disease (coronary artery disease) resulting in workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; when continuous medication is required, is rated 10 percent disabling. Arteriosclerotic heart disease resulting in workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray, is rated 30 percent disabling. Arteriosclerotic heart disease resulting in more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent, is rated 60 percent disabling. Arteriosclerotic heart disease resulting in chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent, is rated 100 percent disabling. 38 C.F.R. § 4.104, Diagnostic Code 7005. A Note to Diagnostic Code 7005 provides that, if non-service-connected arteriosclerotic heart disease is superimposed on service-connected valvular or other non-arteriosclerotic heart disease, the adjudicator is to request a medical opinion as to which condition is causing the current signs and symptoms. Id. Diagnostic Code 7007 pertains to hypertensive heart disease. Under Diagnostic Code 7007, a 30 percent rating is warranted when workload greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is warranted where there has been more than one episode of acute congestive heart failure in the past year; or a workload of greater than three METs but not greater than five METs results in dyspnea, fatigue, angina, dizziness, or syncope; or where there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is assigned when the Veteran manifests chronic congestive heart failure, or; workload of three METs or less that results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104 , Diagnostic Code 7007. On March 2007 VA heart examination, the Veteran complained of atypical sharp chest pain that was unrelated to exercise two to three times a week lasting several minutes. The Veteran denied all other symptoms to include angina, dyspnea, fatigue, dizziness, and syncope. The examiner indicated eight to 10 METs; the Veteran walked one to three miles a day without symptoms. The Veteran could not perform exercise testing due to a back condition. The examiner diagnosed hypertensive heart disease with left ventricular and atrial hypertrophy. METs were eight. The examiner also diagnosed mitral valve regurgitation. April 2010 private medical records reflect an ejection fraction of 69 percent with no clear evidence of ischemia. In March 2011, the Veteran was afforded another VA heart examination. The examiner indicated that the Veteran remained asymptomatic. The Veteran never had angina (exertional chest pain or dyspnea). The course of the condition was stable. Because the Veteran's condition was stable and unchanged since the 2007 VA examination, the examiner indicated that the Veteran's clinical physician did not think it necessary to repeat an echocardiogram. There was no history of myocardial infarction, rheumatic fever, heart rhythm disturbance, valvular heart disease, congestive heart failure, other heart disease, angina, dizziness, syncope, fatigue, or dyspnea. There were no abnormal breath sounds. The cause of the Veteran's hypertensive heart disease was hypertension. The examiner indicated that stress test results revealed eight METs on January 2007 echocardiogram. Medication was required to control hypertension. No medication was required for the service-connected heart disease. The examiner diagnosed hypertensive heart disease and indicated that the Veteran's service-connected heart disability was not a factor in the Veteran's resignation in December 2010, which was prompted by orthopedic disorders that precluded the long twice monthly flights that were required for his administrative position. In a May 2011 addendum to the March 2011 VA examination report composed after the claims file was reviewed, the examiner indicated that the Veteran's hypertensive heart disease did not cause limitations in employment. The Veteran never had documented angina, dyspnea, fatigue, or dizziness that was due to the service-connected heart disability. A September 2011 stress test showed three to five METs, a METS level consistent with activities such as light yard work, mowing the lawn, and brisk walking. Left ventricular ejection fraction was 69 percent according to a 2009 test. At the outset, the Board finds that a 100 percent evaluation is not warranted at any time during the appeal period under either Diagnostic Code 7005 or Diagnostic Code 7007, as the Veteran has never shown signs of chronic congestive heart failure or a workload of three METs or less resulting in dyspnea, fatigue, angina, dizziness, syncope, or an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, Diagnostic Codes 7005, 7007; see also Fenderson, supra. The question that remains is whether an evaluation in excess of 30 percent is warranted before September 16, 2011. The Board finds that it is not. The evidence dated before September 16, 2011 does not reflect any episodes of congestive heart failure or a workload of greater than three METs but not greater than five METs. Indeed, METs was greater than five before September 16, 2011. Moreover, before that date, there was no sign of dyspnea, fatigue, angina, dizziness, or syncope. Finally, left ventricular dysfunction with an ejection fraction of 30 to 50 percent was not shown. Rather, ejection fraction was 69 percent. As quite apparent from the foregoing discussion, none of the criteria for a 60 percent evaluation under either Diagnostic Code 7005 or Diagnostic Code 7007 is met at any time before September 16, 2011, and a 60 percent evaluation before that time must be denied, Id. The Board notes that it has considered other provisions related to the evaluation of disabilities of the heart. None of these provisions are applicable herein. Diagnostic Code 7000 pertains to valvular heart disease, which is not shown. 38 C.F.R. § 4.104. Diagnostic Code 7001 regards endocarditis, a condition about which the record is silent. Id. Diagnostic Code 7002 concerns pericarditis, a disability that is not apparent from a close review of the claims file. Id. Diagnostic Code 7003 relates to pericardial adhesions, which are not present. Id. Diagnostic Code 7004 is employed in rating syphilitic heart disease. The Veteran does not suffer from syphilitic heart disease, and Diagnostic Code 7004 need not be discussed further. Id. Diagnostic Code 7006 concerns myocardial infarctions, which were not shown during the appeal period. Id. The remaining g provisions related to disabilities of the heart: Diagnostic Code 7008 (hyperthyroid heart disease), Diagnostic Code 7010 (supraventricular arrhythmias), Diagnostic Code 7011 (ventricular arrhythmias), Diagnostic Code 7015 (atrioventricular block), Diagnostic Code 7016 (heart valve replacement), Diagnostic Code 7017 (coronary bypass surgery), Diagnostic Code 7018 (implantable cardiac pacemaker), Diagnostic Code 7019 (cardiac transplantation), and Diagnostic Code 7020 (cardiomyopathy) pertain to heart conditions or procedures that the Veteran has not experienced. Id. Again, therefore, the Board emphasizes that it has considered all potentially applicable scheduler provisions is making its determination herein. See Schafrath, supra. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. Left shoulder disability The Veteran's service-connected left shoulder disability has been rated 10 percent disabling before March 9, 2011 and 20 percent disabling effective March 9, 2011 by the RO under the provisions of Diagnostic Code 5020. 38 C.F.R. § 4.71a. Diagnostic Code 5020 pertains to synovitis. The diseases listed under Diagnostic Codes 5013 to 5024 will be rated on limitation of motion of affected parts, as arthritis, degenerative, except gout, which will be rated under Diagnostic Code 5002. Id. Diagnostic Code 5201 provides for limitation of motion of the arm. Id. Diagnostic Code 5201 provides that limitation of motion of the arm at the shoulder level is rated 20 percent for the major shoulder and 20 percent for the minor shoulder; limitation of motion of the arm midway between the side and shoulder level is rated as 30 percent for the major shoulder and 20 percent for the minor shoulder; limitation of motion of the arm to 25 degrees from the side is rated as 40 percent for the major shoulder and 30 percent for the minor shoulder. Id. Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 degrees to 180 degrees, abduction from 0 degrees to 180 degrees, external rotation from 0 degrees to 90 degrees, and internal rotation from 0 degrees to 90 degrees. 38 C.F.R. § 4.71, Plate I (2012). On March 2006 VA joints examination, the Veteran reported that holding objects weighing five to 10 pounds, the left shoulder seemed to "slide out of place." This problem began three years earlier, according to the Veteran. He reported constant left shoulder pain that was a four in intensity on a scale of one to 10. The Veteran reported some left shoulder weakness. He denied stiffness, swelling, redness, or instability. There was lack of endurance for activities requiring bringing the arm above shoulder level due to pain. The Veteran used over-the-counter analgesics for left shoulder pain with good results. As to occupational limitations caused by the service-connected left shoulder disability, the examiner indicated that there were none. The Veteran owned a business that cleaned and disinfected hospital materials. The Veteran avoided strenuous activity with the left shoulder. The examiner indicated that the Veteran's dominant extremity was the right one. Left forward flexion was from zero to 180 degrees. Internal rotation was from zero to 90 degrees. External rotation was from zero to 90 degrees. Abduction was from zero to 180 degrees, and adduction was from zero to 50 degrees. The examiner indicated that left shoulder range of motion was normal. There was pain during active abduction from 90 to 180 degrees. Range of motion and joint function were not additionally limited by pain, fatigue, weakness, or lack of endurance following repetitive use or during flare-ups. There was objective evidence of left shoulder tenderness. An X-ray study of the left shoulder reflected a normal left shoulder. The diagnosis was of residuals of a left shoulder injury. On March 2007 VA joints examination, the Veteran reported constant pain with stiffness and instability. The Veteran reported that left shoulder pain was a three in intensity on a scale of one to 10 and that he used over-the-counter medication to control pian. The Veteran indicated that he experienced left shoulder flare-ups one to three times a week at which time left shoulder pain was a 10 in intensity on a scale of one to 10. These lasted approximately 15 to 20 minutes. Flare-ups did not impede the Veteran's ability to perform his daily functional activities. There was instability one to three times a week but no dislocations. The Veteran did not miss any time from work as a result of the service-connected left shoulder disability in the previous 12 months. Left shoulder flexion was to 155 degrees. Extension was to 50 degrees. Abduction was to 155 degrees. Adduction was to 50 degrees. Internal and external rotation was to 90 degrees. There was no additional left shoulder limitation of motion with repetitive range of motion exercises and no pain, fatigue, incoordination, weakness, or lack of endurance. There was increased pain from 90 to 155 degrees of flexion and abduction. The examiner diagnosed left shoulder impingement syndrome, post-operative repair with residuals. An April 2010 magnetic resonance imaging of the left shoulder revealed, in pertinent part, minimum degenerative arthrosis of the acromioclavicular and glenohumeral joints. On March 2011 VA joints examination, the Veteran reported that left shoulder pain was a seven in intensity on a scale of one to 10. There were flare-ups of pain that was a 10 in intensity on a scale of one to 10 when the Veteran slept on the left shoulder or rotated the left shoulder posteriorly. These flare-ups lasted from a few hours to several weeks. Lesser flare-ups occurred four or five times a week. The Veteran was limited in lifting with the left upper extremity. There was no pain in the left arm was relaxed. The Veteran used over-the-counter medication as well as steroid injections to alleviate pain. There was objective evidence of pain on left shoulder range of motion. Flexion was to 150 degrees, abduction was to 90 degrees, internal rotation was to 90 degrees. External rotation was to 45 degrees. There was no additional left shoulder limitation of motion with repetitive range of motion exercises. A May 2011 VA examination addendum reflected that the Veteran's left shoulder disability limited lifting and carrying to some extent. Pain, however, did not limit left shoulder function. Left shoulder limitations included no lifting more than 15 pounds and no repetitive lifting from five to 15 pounds (no more than three times an hour), no climbing ladders or operating heavy machinery, or prolonged keyboard work. Before March 9, 2011, left arm motion was somewhat limited in that forward flexion and abduction were to 155 rather than to 180 degrees. This level of disability does not rise to that required for a 20 percent evaluation under December 5201. Under that provision, a 20 percent evaluation would necessitate that left (minor) range of motion be to shoulder level (90 degrees). See Plate I, 38 C.F.R. § 4.71a. Here, in all relevant spheres (forward flexion, abduction, internal rotation, and external rotation), left shoulder range of motion was not restricted to shoulder level. Thus, a 20 percent evaluation under Diagnostic Code 5201 is precluded before March 9, 2011. 38 C.F.R. §§ 4.71, 4.71a, Diagnostic Codes 5020, 5201. In the present case, it should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 (2012) allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 (2012) provides that consideration also be given to weakened movement, excess fatigability, and incoordination. Functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements is not shown before March 9, 2011. Furthermore, weakened movement, excess fatigability, and incoordination have not been shown. Thus no additional compensation under these provisions need be considered. Next, the Board must consider whether an increased rating is warranted for the service-connected left shoulder disability effective March 9, 2011. The Board recognizes that the Veteran experiences left shoulder pain and some limitation of function in that he cannot lift loads weighing more than 15 pounds and must limit lifting loads weighing five to 15 pounds. As well, the Veteran cannot operate heavy machinery and must limit keyboard use. Nonetheless, a 30 percent evaluation cannot be assigned under Diagnostic Code 5201 because such evaluation would necessitate that left arm range of motion be limited to 25 degrees from the side. While the Veteran does experience left shoulder limitation of motion, it is not restricted to 25 degrees from the side. Indeed, it far exceeds 25 degrees in all directions noted on examination in March 2011. As such, an evaluation of 30 percent for the service-connected left shoulder disability is not warranted effective March 9, 2011. Id. As stated, when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca, supra. Further, 38 C.F.R. § 4.45 (2012) provides that consideration also be given to weakened movement, excess fatigability, and incoordination. To the extent that these manifestations exist, they were considered in evaluating whether an increased rating is warranted effective March 9, 2011. However, as detailed above, there is no means by which to assign an evaluation in excess of 20 percent for the Veteran's service-connected left shoulder disability at any time from March 9, 2011. The Board notes that other scheduler provisions related to the shoulder are not applicable during the period before March 9, 2011 or effective that date. Diagnostic Code 5200 pertains to ankylosis of scapulohumeral articulation, which is not present herein. 38 C.F.R. § 4.71a. Diagnostic Code 5202 pertains to other impairment of the humerus, which is not shown at any time during the appeal period. Id. Diagnostic Code 5203 pertains to impairment of the clavicle or scapula, which is not present in the Veteran's case either before or after March 9, 2011. Id. There are no other provisions in the schedule relating to the shoulder. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. Bilateral hearing loss The Veteran's service-connected bilateral hearing loss has been rated zero percent disabling by the RO under the provisions of Diagnostic Code 6100. 38 C.F.R. § 4.85. Evaluations of defective hearing range from zero to 100 percent. This is based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. To evaluate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100. The ratings for disability compensation for hearing loss are determined by the mechanical application of the criteria in Table VI and Table VII. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral, to determine the Roman numeral designation for hearing impairment. 38 C.F.R. § 4.86(a). When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher number. Thereafter, that numeral will be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). On March 2006 VA audiologic examination, results were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 35 40 45 36 LEFT 25 60 55 50 48 Speech recognition under the Maryland CNC test was 94 percent bilaterally. The foregoing examination results represent Level I hearing loss in the right ear and Level I hearing loss in the left ear. On January 2007 VA audiologic examination, results were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 30 40 45 35 LEFT 25 65 55 50 49 Speech recognition under the Maryland CNC test was 94 percent bilaterally. The foregoing examination results represent Level I hearing loss in the right ear and Level I hearing loss in the left ear. On March 2011 VA audiologic examination, results were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 30 40 55 55 45 LEFT 25 65 60 60 53 Speech recognition under the Maryland CNC test was 88 percent bilaterally. The foregoing examination results represent Level II hearing loss in the right ear and Level II hearing loss in the left ear. The examiner indicated that the Veteran's hearing loss alone was not preclusive of employment with proper hearing aids or other appropriate assistive devices. The only type of employment that might be restricted was the type that required acute hearing for safety or job performance. General employability, however, was not limited in any way as a result of the service-connected bilateral hearing loss. The Veteran's hearing was again evaluated in May 2011. Results were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 35 55 55 43 LEFT 25 60 60 60 51 Speech recognition under the Maryland CNC test was 88 percent bilaterally. The foregoing examination results represent Level II hearing loss in the right ear and Level II hearing loss in the left ear. The examiner indicated that gainful employment would not be limited as a result of the service-connected bilateral hearing loss with proper hearing aids and/or other necessary assistive devices. Without these, background noise could present a problem in certain employment settings. Again, though, with proper care, employability was not limited as a result of the service-connected bilateral hearing loss. The Board observes that an exceptional pattern of hearing loss has not been shown at any time and that Table VI has been used throughout to determine the numeric designation of hearing impairment in each ear. 38 C.F.R. §§ 4.85, 4.86. Applying the combination of Level I and Level I hearing loss to Table VII corresponds to a noncompensable disability rating. Applying the combination of Level II and Level II hearing loss to Table VII corresponds to a noncompensable disability rating. As noted above, the ratings for disability compensation for hearing loss are determined by the mechanical application of the criteria in Table VI and Table VII. See Lendenmann, 3 Vet. App. at 349. There is no room for discretion herein. The evidence, as it stands, indicates the Veteran's service-connected bilateral hearing loss warrants no more than a noncompensable evaluation throughout the appeal period. See Hart, supra. As such, the Board cannot assign an evaluation in excess of zero percent at any time during the appeal period. 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 (2007). In this case, VA examiners in March and May 2011 noted in essence that there was no functional impairment caused by the Veteran's hearing loss if he used hearing aids or other necessary devices. Generally, the Veteran's service-connected bilateral hearing loss did not have a deleterious impact upon employability. The Board finds that functional impairment has been appropriately considered. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. Extraschedular Consideration The Board has considered whether an extraschedular evaluation would have been warranted for lumbar spine disability. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Before discussing further entitlement to an extraschedular evaluation, the Board notes that it has considered Mittleider v. West, 11 Vet. App. 181 (1998) and has attributed all potentially service-connected symptoms to one service-connected condition or another. The Board finds that the schedular rating criteria contemplate the Veteran's service-connected hypertensive heart disease. The rating criteria specifically provide for ratings based on the presence of symptoms such as dyspnea, fatigue, angina, dizziness, and syncope. They also take into account Mets, ejection fraction, and cardiac hypertrophy or dilation, the need for medication, and/or the presence of congestive heart failure. The schedular right rating criteria also contemplate the Veteran's service-connected left shoulder disability. The service-connected left shoulder disability rating criteria specifically provide for ratings based on the presence of painful arthritis, limitation of motion of the shoulder (including due to pain and other orthopedic factors; see 38 C.F.R. §§ 4.40, 4.45; see also DeLuca, supra). The schedular rating criteria also contemplate the Veteran's service-connected bilateral hearing loss in that they take into account both average puretone thresholds as well as speech discrimination and provide for exceptional patterns of hearing loss. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1 (2012). In this case, the problems reported by the Veteran regarding the heart (atypical chest pain), left shoulder (limitation of motion, pain, stiffness, and a sensation of dislocation, and not being able to lift heavy objects), and bilateral hearing loss (a reduced ability to hear in the absence of hearing aids) are specifically contemplated by the criteria discussed above, including the effect on her daily life. In the absence of exceptional factors associated with the Veteran's service-connected hypertensive heart disease, left shoulder disability, and/or bilateral hearing loss, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met with respect to any of the disabilities discussed herein. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For these reasons, the Board finds the weight of the evidence is against a finding of increased disability ratings for hypertensive heart disease, a left shoulder disability, and bilateral hearing loss. As explained above, to the extent any higher level of compensation is sought regarding any of these disabilities, the preponderance of the evidence is against this claims, and hence the benefit- of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Other Matters The Court held that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether TDIU as a result of that disability is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board has not addressed the matter of TDIU herein, as the issue has been referred to the RO for appropriate action. ORDER An initial rating in excess of 30 percent before September 16, 2011 and in excess of 60 percent effective September 16, 2011 for service-connected hypertensive heart disease is denied. An evaluation in excess of 10 percent before March 9, 2011 and in excess of 20 percent effective March 9, 2011 for a service-connected left shoulder disability is denied. A compensable evaluation for service-connected bilateral hearing loss is denied. REMAND In February 2011, the Board remanded the issues of entitlement to service connection for a cervical spine disability and entitlement to service connection for a right knee disability for further development of the evidence to include the scheduling of a VA examination for an opinion regarding the etiologies of the claimed cervical spine and right knee disabilities. The Board asked the following: The RO should afford the Veteran an examination to determine the etiology of any current cervical spine disability. The claims folder should be made available to the examiner for review in connection with the examination. The examiner should report all orthopedic diagnoses pertinent to the cervical spine. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that a current cervical spine disability is the result of an injury or disease in active service. Attention is invited to the service treatment records showing a diagnosis of cervical spine strain. The examiner is advised that the Veteran is competent to report injuries as well as symptoms, and that his reports must be considered in formulating the requested opinions. A complete rationale should be given for all opinions and conclusions expressed. And The RO should afford the Veteran an examination to determine the etiology of any current right knee disability. The claims folder should be made available to the examiner for review in connection with the examination. The examiner should report all orthopedic diagnoses pertinent to the knee. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that a current right knee disability is the result of an injury or disease in active service. The examiner is advised that the Veteran is competent to report injuries as well as symptoms, and that his reports must be considered in formulating the requested opinions. A complete rationale should be given for all opinions and conclusions expressed. In March 2011, the Veteran was afforded the requisite VA examinations; however, the examiner did not have access to the claims file. As such, the examiner reviewed the claims file and provided the requested opinions in a May 2011 addendum. Regarding the cervical spine, the examiner indicated that he could not offer an opinion without resorting to mere speculation because there was only one mention of neck pain following an automobile accident in 1961 and the cervical spine was not mentioned again in the service treatment records or in the separation examination. Regarding the right knee, the examiner indicated that he could not opine regarding etiology without resorting to mere speculation because the one mention of the right knee was in June 1958, and there were no further documented visits for the right knee in service and no mention of a right knee disability in the separation medical examination report. Unfortunately, the remand instructions regarding the examinations were not followed as directed (the examiner does not appear to have considered the Veteran's contentions in rendering his opinions), and the examination reports are otherwise inadequate; thus, a remand for corrective action is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that substantial compliance with the terms of a Board remand is required); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Court has held that "before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence." Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). In other words, in cases such as this, where an examiner concludes that an opinion cannot be provided without resorting to speculation, it must "be clear in the examiner's remarks whether it cannot be determined from current medical knowledge that a specific in-service injury or disease can possibly cause the claimed condition, or that the actual cause cannot be selected from multiple potential causes." Id. If not, "it is the Board's duty to remand for further development." Id. In this case, the examiner explained that he could not opine regarding the etiologies of the claimed cervical spine and right knee disabilities because, in essence, there was scant mention of these anatomical parts in the service treatment records. It is not clear from the VA examiner's explanations whether opinions regarding the etiologies of the claimed disabilities cannot be determined from current medical knowledge. Thus, further medical opinions are necessary. Id.; see also Barr, 21 Vet. App. at 312 (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In short, the examiner did not follow the remand instructions in that he failed to consider the Veteran's reported medical history regarding the cervical spine and right knee. The opinions provided were inadequate because they did not explain sufficiently why the etiologies of the Veteran's claimed disabilities were not determinable based on current medical knowledge. As such, the RO/AMC should provide the Veteran's claim folder to the examiner who conducted the March 2011 VA examination or a suitable replacement and the examiner should review the claims folder and prepare an addendum opinion that addresses whether it is at least as likely as not (50 percent probability or more) that the current cervical spine and right knee disabilities are the result of an injury or disease in active service. The record contains VA clinical records dated through May 31, 2010. As such, records dated from June 1, 2010 to the present must be associated with the claims file. See 38 C.F.R. § 3.159(c)(2); Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990) (holding that all VA treatment records that could potentially be helpful in resolving a claim must be obtained); see also Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file). Accordingly, the case is REMANDED to the RO/AMC for the following action: 1. Associate with the claims file all VA clinical records dated from June 1, 2010 to the present. 2. Provide the Veteran's claim folder to the examiner who conducted the March 2011 VA examination or a suitable replacement. After reviewing the pertinent documents in the claims file, the March 2011 VA examination report, and the May 2011 addendum opinion, the examiner must prepare an addendum opinion that addresses whether it is at least as likely as not (50 percent probability or more) that a current cervical spine disability is the result of an injury or disease in active service. Attention is invited to the service treatment records showing a diagnosis of cervical spine strain. The examiner must also render an opinion that addresses whether it is at least as likely as not (50 percent probability or more) that a current right knee disability is the result of an injury or disease in active service. The examiner is advised that the Veteran is competent to report injuries as well as observable symptoms, and that his reports must be considered in formulating the requested opinions. Attention is invited to the March 2011 VA examination report and the July 2010 Board hearing transcript which set forth the Veteran's report of the in-service injuries and symptoms in service and after service. The claims folder should be made available to the examiner for review in connection with the examination. The addendum report should indicate whether the requested review of the review took place. A complete rationale should be given for all opinions and conclusions expressed. If deemed appropriate by the examiner, the Veteran must be scheduled for further orthopedic examination. All indicated tests and studies must be performed, and any indicated consultations must be scheduled. 3. Following completion of all indicated development, the RO should readjudicate the matters remaining on appeal in light of all the evidence of record. If any benefit sought on appeal is not granted, the RO should issue a supplemental statement of the case. The case should be returned to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). ______________________________________________ C. L. KRASINSKI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs