Citation Nr: 1324924 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 12-23 940 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an effective date prior to September 30, 2011 for the grant of service connection for right ankle disability. 2. Entitlement to service connection for headaches. 3. Entitlement to an initial evaluation in excess of 10 percent for residuals of right ankle fracture, degenerative arthritis (right ankle disability). 4. Entitlement to an initial compensable evaluation for bilateral sensorineural hearing loss disability. REPRESENTATION Appellant represented by: Calvin Hansen, Esq. ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1956 to June 1963. These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2012 and May 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office in Lincoln, Nebraska (RO). The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue pertaining to an increased rating for bilateral sensorineural hearing loss disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO. FINDING OF FACT 1. The preponderance of the competent evidence is against a finding that the Veteran's current diagnosed tension headaches had an onset during service or that they are otherwise related to active duty, to include in-service complaints of headaches. 2. The Veteran's right ankle disability has been manifested by no more than degenerative arthritis with moderate loss of motion, and he has not been shown to have marked limitation of motion or ankylosis, malunion of the os calcis or astragalus, or astragalectomy. 3. On September 30, 2011, the RO received the Veteran's request to file a claim for service connection right ankle disability. The claim was continuously prosecuted thereafter. In the May 2012 rating decision, the RO awarded an effective date of September 30, 2011 for service connection for right ankle disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for headaches have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. The criteria for an initial evaluation in excess of 10 percent for right ankle disability have not been met. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Codes 5003, 5271 (2012). 3. The criteria for an effective date prior to September 30, 2011, for the grant of service connection for the right ankle disability, have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations requires VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not in the 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. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). These notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Proper VCAA notice must be provided to a claimant prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). With regard to the Veteran's appeal arising from his disagreement with the initial rating evaluations and effective date assigned following the grant of service connection for right ankle disability, the duty to notify has been satisfied. In such cases, the VCAA requires that the Secretary need only provide the Veteran with a generic notice after the initial claim for benefits has been filed and before the initial decision. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). No additional notice is required in the adjudication process because the other forms of notice-such as notice contained in the rating decisions and statements of the case (SOC)-have already provided the claimant with the notice of law applicable to the specific claim on appeal. Wilson v. Mansfied, 506 F.3d 1055 (Fed. Cir. 2007). Regarding the Veteran's service connection claim, the Veteran was advised in a November 2011 of the evidence and information necessary to substantiate his claim, and the responsibilities of the Veteran and VA in obtaining such evidence. He was further advised of the evidence and information necessary to establish a disability rating and an effective date, in accordance with Dingess/Hartman. The Veteran's claim for service connection for headaches was then initially adjudicated in the January 2012 rating decision. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond. In addition to its duty to notify, or inform, the Veteran with regard to his claim, VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and records of pertinent medical treatment since service, and providing the Veteran a medical examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Of record are the Veteran's service treatment records, VA medical treatment records, and indicated private medical records as well as his own statements. In response to notice letters asking the Veteran to identify any pertinent private medical records, the Veteran identified and VA has obtained his private treatment records from ENT Nebraska, Dr. T.T. VA also received private treatment records from Arthritis Center of Nebraska and The Hearing Clinic. The Veteran has not provided any authorization for VA to obtain any other potentially relevant treatment records. While VA has a statutory duty to assist the Veteran in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). Accordingly, the Board finds that no further assistance to the appellant in acquiring evidence is required by statute. 38 U.S.C.A. § 5103A. VA has also provided the Veteran with VA joint examinations in December 2011 and February 2013 in conjunction with his right ankle disability. In each of these examination reports, the examiner identified the nature of the Veteran's disability and recorded his reported history as well as the findings from clinical evaluation. In addition, VA provided the Veteran with a VA neurology examination in June 2012 to determine the nature and etiology of his claimed headache disorder. That VA examination report show that the VA examiner reviewed the claims folders and recorded the Veteran's reported history and the clinical findings in the examination. The VA examiner also provided a comprehensive statement in support of his medical conclusions on etiology. The Board finds that the examination reports are adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). 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 claim that has not been obtained. See Bernard v. Brown, 4 Vet. App. 384 (1993). For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify and its duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103; 38 C.F.R. §§ 3.159(b), 20.1102; Pelegrini, supra; Quartuccio v. Principi, 16 Vet. App. 183 (2002). 2. Service Connection Claim Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b). The chronicity provision of 38 U.S.C.A. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). To prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. In this case, the Veteran seeks entitlement to service connection for headache disorder. He reports that he experienced headaches on several occasions during his period of service. He contends that his current headache disorder is related to his period of service, to include his in-service complaints of headaches. A review of the Veteran' service treatment records show that he complained of headache problems twice during his six years of active duty. A December 1957 treatment note shows that the Veteran presented with complaints of headache, cough, cold, and fever. He was treated for a cold. A June 1958 treatment note shows that the Veteran presented with complaints of severe headache for the past week. He was prescribed medication. None of the subsequent treatment records shows any complaints, treatment or diagnosis of any headache-related disorder. The report of a June 1963 examination prior to separation, the Veteran received normal head and neurologic evaluations. On the associated report of medical history, the Veteran specifically denied having had experienced severe or frequent headaches during his period of service. On the report of an August 1966 VA general medical examination, the Veteran did not inform the examiner of any headache-related problems. The post-service treatment records do not show complaints of any headache-related problems until decades after the Veteran's separation from service. An April 11, 2011 VA pharmacy notation shows the Veteran stopped taking Nitroglycerin, because it was giving him headaches. An August 29, 2012 VA treatment note shows that the Veteran complained of headaches that occurred most days that was related to his mild neck problems. None of the VA treatment records shows that the Veteran was assessed with a chronic headache disorder, they do show that he was treated for several significant medical conditions, including: multiple joint pain, hypertension, seizure disorder, insomnia and dementia. He also suffered whiplash injuries from a motor vehicle accident in 2010. In June 2012, the Veteran was afforded a VA neurology examination in order to determine the nature and etiology of his claimed headache disorder. In this examination report, the examiner noted a review of the claims folder, including the Veteran's service treatment records that reflected headache complaints in 1957 and 1958. The examiner noted that the Veteran reported that he "faintly recalls having headaches on several occasion while he was in the Army" and he was unsure if his current headaches were similar to those he experienced in service. The Veteran informed the examiner that he had been told that he had tension headache. A diagnosis of tension headaches was provided. Based on a review of the claims folder, the Veteran's reported history and the findings from clinical evaluation, the VA examiner opined that the Veteran's current headache disorder was less likely than not related to his period of service, to include his in-service complaints. In support of this medical conclusion, the VA examiner noted that other than the two in-service complaints, there was no subsequent treatment or complaints of headache during the remainder of the Veteran's service. The examiner further noted that the Veteran was unable to report that his current headache symptoms were similar to those he experienced in service. Based on a review of the foregoing evidence, the Board finds the weight of the evidence is against a finding that the Veteran's current diagnosed tension headaches had an onset during service or that they are related to active duty, to include two separate in-service complaints of headaches. As noted above, in order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus or relationship between the two. See Shedden v. Principi, 381 F.3d at 1167. With respect to the existence of a present disability, element (1), the June 2012 VA examination report shows that the Veteran has current diagnosis of tension headaches. With respect to in-service incurrence or aggravation of a disease or injury, the Veteran's service treatment records show that he was treated twice for complaints of headaches during his period of service, once in 1957 and again in 1958. Notably, none of the subsequent service treatment records reflects any complaints, treatment or diagnosis for any headache-related disorders. In addition, at the time of his separation from service, the Veteran specifically denied any history of severe or frequent headaches. The service treatment records do not demonstrate that the Veteran had a chronic headache disorder during his period of service. 38 C.F.R. § 3.303. However, the Board cannot ignore his in-service complaints of headache, despite the lack of continuity of treatment or symptoms throughout the remainder of his service. Although in-service injury and current disability have been established, as noted above, this is not sufficient to warrant service connection. There still must be evidence to establish element (3), a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Here, the record lacks medical evidence establishing a possible relationship between the Veteran's current headaches and his period of service. The February 2013 VA examiner concluded that the Veteran's current diagnosed headache disorder was less likely than not related to his period of service. The examiner supported this medical conclusion by noting the lack in-service treatment for any subsequent headache problems after 1958 as well as the Veteran's inability to confirm that his current symptoms are similar to those headaches he experienced in service. The Board finds it highly pertinent that there is no contrary medical opinion of record. Indeed, the Veteran has not provided any evidence demonstrating a relationship between his current headache disorder and his military service. The Veteran has had ample opportunity to secure medical evidence and provide lay statements in his favor and submit the same to VA. He has not done so. See 38 U.S.C.A. § 5107(a) [it is a claimant's responsibility to support a claim for VA benefits]. The Veteran's assertions are the only evidence relating his current diagnosed headache disorder to his period of service. However, the Veteran is not a medical professional, and therefore, his beliefs and statements about medical matters do not constitute competent evidence regarding matters that go beyond lay observation, such as to assess the etiology of a headache disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (under certain circumstances, lay person is competent to identify a simple medical condition). Notably, the question of etiology of headache disorder extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case. The Veteran lacks the medical expertise to diagnose the condition and to relate its etiological origin in service. See Bostain v. West, 11 Vet. App. 124, 127 (1998). Therefore, to the extent, his statements attempt to show an etiological connection between his current diagnosed disorder and service, this is simply not competent or persuasive evidence. Simply put, there is no medical evidence on file linking the Veteran's current headache disorder to his period of service. The Veteran is not a medical professional competent to provide such a link by mere statements alone. There is no competent medical evidence indicating that the Veteran's disorder is otherwise related to his service. Rather, the evidence of record contains the February 2013 VA examiner's medical opinion that weighs heavily against the Veteran's claim. The Federal Circuit recently held that continuity of symptomatology under 38 C.F.R. § 3.303(b) applies to those conditions recognized as chronic under 38 C.F.R. § 3.309(a), which includes organic diseases of the nervous system. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, the Veteran has not reported any continuity of symptoms with respect to headaches since his separation from service. The Veteran is unable to report that his current headache symptoms are similar to those he experienced in service. The record also lacks any documentation of headache problems from 1958 until 2011. Moreover, the VA treatment records in 2011 and 2012 reflect that the Veteran's complaints of headaches were associated with post-service intervening etiologies, such as Nitroglycerin medication for a heart condition as well as from neck pain. The Veteran has not asserted, and the evidence of record does not suggestion, that his heart problems or neck problems are or may be associated with his period of service. Therefore, service connection based on continuity of symptomatology is not warranted. Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran's headache disorder had an onset in service or is otherwise related to his period of service, to include in-service complaints. The evidence in this case is not so evenly balanced to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. 3. Initial Increased Rating Claim Disability evaluations are determined by the application of the facts presented to a schedule of ratings that is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. When evaluating the severity of a disability, VA will consider the entire history of the disability. See 38 C.F.R. § 4.126(a); Peyton v. Derwinski, 1 Vet. App. 282 (1991). In cases involving the assignment of an initial rating following the award of service connection, VA must address all evidence that was of record from the date of the filing of the claim on which service connection was granted (or from other applicable effective date). Fenderson v. West, 12 Vet. App. 119, 126-127 (1999). The analysis in the following decision is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. See id.; Hart v. Mansfield, 21 Vet. App. 505 (2007). This practice is known as "staged" ratings. It is not expected that all cases will show all the findings specified; however, in all instances it is expected that there will be sufficient findings as to identify the disease and the disability there from, and to coordinate the rating with the identified impairment of function. 38 C.F.R. § 4.21. Where there is a question as to which of two rating 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. When all the evidence is assembled, 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 a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Any reasonable doubt will be resolved in favor of granting the veteran's claim. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. § 3.102. In this case, the Veteran seeks a higher initial evaluation for his right ankle disability. His right ankle disability is currently assigned a 10 percent disability evaluation pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5003-5271. He claims that his disability is more severe than reflected by the current assigned evaluation. Diagnostic Code 5003 states that the severity of degenerative arthritis, established by x-ray findings, is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints affected which in this case would be Diagnostic Code 5271 (limitation of motion of the ankle). When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of-motion code, a 10 percent rating will be assigned for each affected major joint or group of minor joints. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is warranted if there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and a 20 percent evaluation is authorized if there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under Diagnostic Code 5271, a 10 percent disability evaluation is assigned when there is moderate limitation of motion. A 20 percent disability evaluation is warranted when such impairment is marked. Normal range of motion of the ankle is dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5271 and Plate II. In this case, the Veteran claims that his right ankle disability is more severe than symptomatology associated with a 10 percent evaluation. A review of the record shows that the Veteran's right ankle disability was evaluated twice by VA. The Veteran first underwent a VA joint examination in December 2011 in conjunction with his claim for entitlement to service connection for a right ankle disorder. The examination report shows a diagnosis of degenerative joint disease as a residual of in-service right ankle fracture. In the examination report, the examiner noted that the Veteran complained of constant ankle pain and he reported flare-ups in the severity of his symptoms with cold weather. He also reported that he experiences "snaps" in his right ankle approximately four to seven times a week. Range of motion testing revealed plantar flexion limited to 30 degrees, without evidence of objective pain on movement, and dorsiflexion limited to 10 degrees, without evidence of objective pain on movement. There was no evidence of additional limitation of motion on repetitive use due to pain, fatigue, weakness, lack of endurance, and incoordination. The Veteran was assessed with functional impairment due to less movement than normal. The Veteran was afforded a second VA examination in February 2013 to evaluate the severity of his right ankle disability. The examination report shows a diagnosis of degenerative joint disease in the right ankle and residuals of right ankle fracture. The Veteran complained of daily stiffness in his right ankle, but he denied any flare-ups in right ankle problems. Range of motion testing revealed that the Veteran had plantar flexion limited to 33 degrees, with pain beginning at 30 degrees, and dorsiflexion limited to 15 degrees, without pain. The Veteran had functional loss in his right ankle due to less movement than normal and pain on movement. There was no evidence of additional limitation of motion on repetitive use due to pain, fatigue, weakness, lack of endurance, and incoordination. There was no evidence of instability or muscle weakness on clinical examination. The examiner noted that the Veteran's right ankle disability did not impact his ability to work. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to a higher initial evaluation for his right ankle disability. At no point during the period under appeal has the severity of the Veteran's right ankle disability been shown to be more severe than that meeting the criteria for a 10 percent rating under the provisions for rating degenerative arthritis with loss of motion. The evidence of record shows that the Veteran's right ankle disability included degenerative arthritis manifested by pain and limitation on range of motion. As discussed above, this may be rated under Diagnostic Codes applicable for rating range of motion loss (when range of motion loss is so severe as to be compensable) or it may be rated as 10 percent disabling under Diagnostic Code 5003 (when range of motion loss in that joint is not so severe as to be compensable under applicable codes for rating range of motion loss). He cannot receive concurrent evaluations for degenerative arthritis and loss of motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. Here, the record does contain X-ray evidence of degenerative arthritis in the right ankle with loss of motion and pain on movement. However, even when considering the most significant reduction in range of motion testing, the Veteran's right ankle disability cannot be described as involving more than moderate loss of motion to support an evaluation in excess of 10 percent based on loss of motion under Diagnostic Code 5271. See 38 C.F.R. § 4.71a. In this regard, the Veteran has not been shown to have marked limitation of motion of the ankle. The December 2011 VA examination found him to have dorsiflexion limited to 10 degrees and plantar flexion limited to 30 degrees, both without objective evidence of painful motion. He also had a normal gait and did not require any assistive device for ambulation. Similarly, the February 2013 VA examiner noted that the Veteran had dorsiflexion limited to 15 degrees, without pain and with plantar flexion limited to 33 degrees, with pain beginning at 30 degrees. He continued to have a normal gait during that examination, and his walk was steady. At worst, the Veteran has been shown to have dorsiflexion to 10 degrees and plantar flexion to 30 degrees. As previously noted, the normal range of motion of the ankle is dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5271 and Plate II. He has lost, at most, 15 degrees of plantar flexion and 10 degrees of dorsiflexion. Without greater limitation of motion, it cannot be said that the Veteran's limitation of motion of the right ankle is marked as opposed to moderate. As such, he has not been shown to meet the criteria for an initial evaluation in excess of 10 percent under Diagnostic 5271. Nevertheless, the Board has also considered whether an increased evaluation would be in order under other relevant diagnostic codes. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." 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. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Thus, the Board has considered the propriety of assigning a higher, or separate, rating under another diagnostic code. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). While the Board has considered whether an increased evaluation would be in order under other relevant diagnostic codes, such as that governing ankylosis of the ankle, ankylosis of the subastragalar joint, malunion of the os calcis or astragalus, and astragalectomy, the Board finds that the criteria for a rating in excess of 10 percent are simply not met. See 38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5272, 5273, 5274. In this regard, the Veteran has not been shown to have ankylosis of the right ankle. In fact, both VA examiners specifically stated that the Veteran did not have ankylosis, and the aforementioned range of motion findings indicate that his right ankle is not fixed or immobile. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)); Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (Ankylosis is "stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint", citing Stedman's Medical Dictionary 87 (25th ed. 1990). In addition, the Board notes that there is simply no evidence showing that the Veteran has had malunion of the os calcis or astragalus and astragalectomy. Therefore, the Board finds that the Veteran is not entitled to a higher or separate evaluation under Diagnostic Codes 5270, 5272, 5273, and 5274. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased evaluation for the Veteran's right ankle disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the 10 percent rating, and no higher. In this regard, the Board observes that the Veteran has complained of constant pain as well as occasional stiffness in his ankle. However, the effect of the pain in the Veteran's right ankle is contemplated in the currently assigned 10 percent disability evaluation under Diagnostic Codes 5003-5271. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. In fact, both VA examiners noted that there was no additional limitation of motion with repetitive use due to pain, fatigue, weakness, lack of endurance, and incoordination. In addition, the Veteran did not report during the 2011 exam that he experienced additional limitation of motion on flare-ups and he denied any flare-ups on the most recent exam. Therefore, the Board finds that the preponderance of the evidence is against an initial evaluation in excess of 10 percent for the Veteran's right ankle disability. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 and 5271. The Board notes that the severity of the Veteran's symptomatology has been relatively constant throughout the period of this appeal; therefore, "staged" ratings are not warranted. 38 C.F.R. § 4.71a; Hart, 21 Vet. App. 505. As discussed above, the evidence of record does not indicate that the Veteran's symptomatology has worsened to a level that warrants an evaluation in excess of 10 percent at any point during this period. Should the Veteran's disability picture change in the future, he may be assigned a higher rating. See 38 C.F.R. § 4.1. Other Considerations The Board has also considered whether an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). 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. This means that 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. 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 adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made 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"). See id. However, in this case, the medical evidence fails to show anything unique or unusual about the disabilities at issue that would render the schedular criteria inadequate. In this regard, the Board notes that the Veteran's main symptoms associated with his right ankle disability (stiffness and pain which result in loss of motion) are contemplated in the rating that is assigned for degenerative arthritis with loss of motion. The Board also notes that this case does not raise a claim of entitlement to a total disability rating due to individual unemployability (TDIU). At no point during the period under appeal has the Veteran asserted, nor does the evidence of record show, that the Veteran is unable to obtain or maintain substantially gainful employment because of his service-connected right ankle disability. Rice v. Shinseki, 22 Vet. App. 447 (2009) (a request for TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation). 4. Earlier Effective Date Claim The Veteran contends that he is entitled to an effective date prior to September 30, 2011, for the grant of service connection for right ankle disability. Under the applicable criteria, the effective date for a grant of direct service connection will be the day following separation from active service, or the date entitlement arose if a claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C.A. 5110(a); 38 C.F.R. § 3.400(b). Unless specifically provided, the effective date will be assigned on the basis of the facts as found. 38 C.F.R. § 3.400(a). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. 38 C.F.R. §§ 3.1(p); 3.155. VA means all organization units of the Department of Veteran's Affairs. 38 C.F.R. § 1.9(b)(1). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. See 38 C.F.R. §§ 3.102 and 4.3. In this case, the record shows that VA received the Veteran's claim for service connection for the right ankle disability on September 30, 2011. A November 2011 report of general information shows that the RO was notified that the Veteran had filed a "new claim" on September 30, 2011, but the actual document had not yet been associated with the claims folder. The RO contacted the Veteran's representative, and asked for a copy of the original document. Subsequently, the Veteran's representative submitted a copy of the original claim, which reflected the Veteran's signature date of "Sept 21 2011." The Veteran's representative also submitted the fax transmittal coversheet, which identified "September 30, 2011" as the date of transmittal to VA. The Veteran's claim was continuously prosecuted thereafter. In the May 2012 rating decision, the RO awarded an effective date of September 30, 2011 for service connection for right ankle disability. The law and VA regulations concerning this issue are quite clear, as set forth above: the effective date is the date of receipt of claim or date entitlement arose, whichever is later. Since the claim was received on September 30, 2011, no earlier date may be assigned. See 38 U.S.C.A. 5110(a); 38 C.F.R. § 3.400(b). Despite indication that the Veteran signed his application for service connection on September 21, 2011, the RO did not receive his application until September 30, 2011. The assignment of an effective date is based at the time of VA's actual receipt of the claim. Moreover, an earlier effective date by nine days would not result in any monetary benefit to the Veteran, since payment of benefits commence the first day of the month following the month in which the award became effective, which in this case, was October 1, 2011. 38 C.F.R. § 3.31. The record does not reflect that VA received any other statement by the Veteran or his representative, prior to September 30, 2011, which showed an intent to submit an application for service connection for a right ankle disability. See 38 C.F.R. § 3.155. For the foregoing reasons, the claim for an effective date prior to September 30, 2011, for the award of service connection for right ankle disorder, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the current appeal. 38 U.S.C.A. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1991); Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER Entitlement to service connection for headaches is denied. Entitlement to an initial evaluation in excess of 10 percent for right ankle disability is denied. Entitlement to an effective date, prior to September 30, 2011, for the grant of service connection for the right ankle disability is denied. REMAND The Veteran seeks entitlement to an initial increased evaluation for bilateral sensorineural hearing loss disability. After a thorough review of the Veteran's claims folder, the Board has determined that additional development is necessary prior to the adjudication of this claim. A review of the Veteran's VA treatment records contained in the Virtual VA claims folder show that on January 15, 2013 the Veteran underwent audiological testing. In that treatment record, it was noted that the findings from the testing were contained in the "CPRS audiogram display." The record does not contain the results from the January 2013 audiogram results or the actual audiogram. The Board notes that VA has a duty to obtain all outstanding identified VA treatment records as such records are constructively in the possession of VA adjudicators during the consideration of a claim. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). On remand, attempts should be made to obtain a copy of the January 15, 2013 VA audiogram results, and associate such with the claims folder. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain a copy of the audiogram that was completed by VA on January 15, 2013, either by obtaining the scanned version of the audiogram (the January 15, 2013, VA medical record indicates it can be viewed on "CPRS audiogram display") or by obtaining an original copy from the medical facility. 2. Obtain and associate with the claims file any outstanding VA treatment records since February 2013 that are pertinent to the claim on appeal. 3. After conducting any further development deemed necessary, readjudicate the issue on appeal. If the benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case in accordance with 38 C.F.R. § 19.31(b)(1), and be given an opportunity to respond. The case should then be returned to the Board for appellate review, if indicated. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs