Citation Nr: 1325013	
Decision Date: 08/07/13    Archive Date: 08/13/13

DOCKET NO.  09-43 827	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUES

1.  Entitlement to an initial increased rating for chronic lumbosacral strain with mild spondylosis, post-surgical (also referred to as low back disability), evaluated as 10 percent disabling from November 8, 2007 to March 29, 2010, and 40 percent disabling from March 30, 2010.  

2.  Entitlement to an initial increased rating for residuals of hairline fracture of the left great toe, currently evaluated as 10 percent disabling.  

3.  Entitlement to an initial increased rating for cervical spine degenerative arthritis and disc disease, currently evaluated as 30 percent disabling.  

4.  Entitlement to service connection for bilateral knee disability.  

5.  Entitlement to service connection for bilateral hearing loss.  

6.  Entitlement to a total rating for compensation based on individual unemployability (TDIU).  

REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

S. Keyvan, Associate Counsel


INTRODUCTION

The Veteran had active service from September 1962 to December 1965.  

This matter comes to the Board of Veterans' Appeals (BVA or Board) from the August 2008, November 2008, May 2009, July 2009 and May 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky.  

In the August 2008 decision, the RO denied service connection for the right knee disability.  In the November 2008 rating decision, the RO granted service connection for the low back disability and for residuals of hairline fracture of the left great toe, evaluating both disabilities as 10 percent disabling, effective November 8, 2007.  The RO denied service connection for bilateral hearing loss in the May 2009 rating decision, and further denied service connection for the left knee disability in the July 2009 rating decision.  In the May 2010 rating decision, the RO granted service connection for cervical spine degenerative arthritis and disc disease, evaluating it as 20 percent disabling, effective November 19, 2009.  The Veteran appealed all these decisions to BVA, and the claims have been referred to the Board for appellate review.  

The August 2008 rating decision also denied service connection for the right ankle disability and denied a compensable evaluation for the right pelvis, residuals of healed fracture.  The Veteran included both of these issues in his December 2008 notice of disagreement (NOD).  While these issues were also included in the September 2009 statement of the case (SOC), the Veteran did not include them on his November 2009 and July 2010 substantive appeals.  See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) (pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA).  As such, those issues are not before the Board and will be discussed no further.

During the pendency of the Veteran's appeal, and specifically in the November 2010 rating action, the RO increased the disability evaluation for the service-connected cervical spine disability to 30 percent, effective from November 19, 2009 (date of receipt of claim).  In the April 2011 rating action, the RO increased the disability evaluation for the service-connected low back disability to 40 percent, effective from March 30, 2010.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (where evidence indicates that the degree of disability increased or decreased during appeal period following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found).  The Veteran has not expressed satisfaction with these ratings.  Accordingly, both these issues remain in appellate status for the entire appeal period.  AB v. Brown, 6 Vet. App. 35 (in which the United States Court of Appeals for Veterans Claims (Court) stipulated that, unless a veteran expresses a desire for a specific rating for a service-connected disability, he/she is presumed to be seeking the maximum benefit permitted under the regulations).  

The Board notes that the Veteran requested a hearing before a Veterans Law Judge at the RO.  A videoconference hearing was scheduled on October 27, 2011.  However, in a statement dated on October 26, 2011, the Veteran, through his representative, cancelled his hearing request.  As such, the Veteran's hearing request has been withdrawn.  See 38 C.F.R. § 20.704(e).  

Lastly, the Veteran submitted additional evidence to the Board after the appeal was certified to the Board.  The submission of such evidence was accompanied by a waiver of RO consideration.  38 C.F.R. § 20.1304(c) (2012).

The issues of entitlement to service connection for a right and left knee disabilities as well as entitlement to a TDIU 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.  Bilateral hearing loss was not demonstrated in service or within one year of separation from service; the Veteran's current bilateral hearing loss is not attributable to military service.  

2.  From November 8, 2007 to March 29, 2010, the Veteran's chronic lumbosacral strain with mild spondylosis was not productive of forward flexion of the thoracolumbar spine of 60 degrees or less; the combined range of motion of the thoracolumbar spine was greater than 120 degrees; there was no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; and, there was no evidence of separately compensable neurological abnormalities associated with the spine.

3.  On and after March 30, 2010, the Veteran's chronic lumbosacral strain with mild spondylosis was not productive of incapacitating episodes having a total duration of at least six weeks during the past 12 months, nor was it productive of unfavorable ankylosis of the entire thoracolumbar spine; and, there was no evidence of separately compensable neurological abnormalities associated with the spine.

4.  The Veteran's cervical spine degenerative arthritis and disc disease is not productive of unfavorable ankylosis of the entire cervical spine or of the entire spine, nor is it productive of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months.  

5.  The Veteran's residuals of hairline fracture of the left great toe, has been manifested by pain, redness, stiffness and weakness, but is productive of no more than moderate symptomatology.  


CONCLUSIONS OF LAW

1.  The Veteran does not have bilateral hearing loss that is the result of disease or injury incurred in or aggravated during active military service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1131 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2012).  

2.  The criteria for an initial evaluation greater than 10 percent for the service-connected chronic lumbosacral strain with mild spondylosis, post-surgical, for the period from November 8, 2007 to March 29, 2010, 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 5235-5243 (2012).

3.  The criteria for an initial evaluation greater than 40 percent for service-connected chronic lumbosacral strain with mild spondylosis, post surgical, for the period on and after March 30, 2010, 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 5235-5243 (2012).

4.  The criteria for an initial evaluation in excess of 30 percent for the service-connected cervical spine degenerative arthritis and disc disease have not been met.  38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Codes 5235-5243 (2012).  

5.  The criteria for an initial evaluation in excess of 10 percent for the service-connected residuals of hairline fracture of the left great toe have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5279, 5284 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

As a preliminary matter, the Board finds that no further notice or development action is necessary in order to satisfy VA's duties to the Veteran under the Veterans Claims Assistance Act of 2000 (VCAA).  

In December 2007, March 2009, May 2009, January 2010 letters, VA notified the Veteran of the information and evidence needed to substantiate and complete his claims, and of what part of that evidence he was to provide and what part VA would attempt to obtain for him.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012).  In addition, in each letter, the RO advised the Veteran of the additional notification requirements imposed by the Court in Dingess/Hartmen v. Nicholson, 19 Vet. App. 473 (2006).  

The Board also notes that several issues on appeal stem from the Veteran's appeal of the initial rating and effective date assigned by the RO following the award of service connection.  In such cases, VCAA notice is generally not required.  Dingess/Hartman, 19 Vet. App. at 490 (noting that "once a decision awarding service connection, a disability rating, and an effective date has been made, section 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated"); see also Dunlap. Nicholson, 21 Vet. App. 112 (2007).  Rather, under those circumstances, the provisions of 38 U.S.C.A. §§ 5104, 7105 and 38 C.F.R. § 3.103 are for application.  Id.  

In that regard, the Board finds that the notification requirements of 38 U.S.C.A. §§ 5104 and 7105 have been met.  A review of the record indicates that the Veteran was duly provided notice of the decisions on appeal, as well as an explanation of the procedure for obtaining appellate review of the decisions.  Following receipt of her notices of disagreement, the Veteran was appropriately notified of the applicable legal criteria in Statements of the Case and Supplemental Statements of the Case, as well as in a February 2009 letters.  The Board also notes that neither the Veteran nor his representative has raised any allegation of prejudice regarding any notification deficiencies.  Goodwin v. Peake, 22 Vet. App. 128 (2008).  

With respect to VA's duty to assist, the record shows that VA has undertaken all necessary development action.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012).  His service treatment records as well as all identified and available private and VA treatment records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the service connection claims adjudicated herein.  Significantly, neither the Veteran, nor his representative, has otherwise alleged that there are any outstanding medical records probative of his claim on appeal that need to be obtained.  In addition, the Veteran had the opportunity to testify before the Board in October 2011, but withdrew his hearing request before the date of the hearing.

The Veteran has also been afforded VA medical examinations for his claimed disorders on several occasions, most recently in March 2010 for the residuals of hairline fracture of the left great toe; April 2010 for the low back disability, and May 2011 for the cervical spine disability.  There is no objective evidence indicating that there has been a material change in the severity of his service-connected disorder since the Veteran was last examined.  See 38 C.F.R. § 3.327(a) (2010).  The duty to assist does not require that a claim be remanded solely because of the passage of time since otherwise adequate VA examinations were conducted.  See VAOPGCPREC 11-95.  

In addition, the Veteran was afforded VA examinations in connection to his claim for service connection for hearing loss in April 2009 and May 2011.  To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Here, the Board finds that the VA examinations obtained in this case are adequate, as they were predicated on physical examinations of the Veteran, as well as consideration of the medical records in the Veteran's claims file and the Veteran's reported history.  The opinions consider all of the pertinent evidence of record, to include statements given by the Veteran at the time of the VA examinations, and provide a complete rationale for the opinions stated.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the claims on appeal has been met.  38 C.F.R. § 3.159(c)(4).  

Finally, the Board notes that the Veteran is represented by a veterans service organization (VSO) and that organization is presumed to have knowledge of what is necessary to substantiate a claim for VA benefits.  Neither the Veteran, nor his representative, has pled prejudicial error with respect to the content or timing of VCAA notices.  See Shinseki v. Sanders, 129 U.S. 1696 (2009).  

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome here, the Board finds that any such failure is harmless.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

Service Connection Claims

Applicable Law

Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Generally, establishment of direct service connection for a disorder requires evidence of (1) a current disability; (2) in-service incurrence of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability.  38 C.F.R. § 3.303(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Subsection (a) also refers to "each disabling condition...for which [a veteran] seeks a service connection" and states that "[d]eterminations as to service connection will be based on review of the entire evidence of record."  Id.  

Also, the Court of Appeals for the Federal Circuit (Federal Circuit) held that, unlike §3.303(a) which is not limited to any specific condition, subsection (b) is restricted to chronic diseases. "If a veteran can prove a chronic disease 'shown in service,' and there are no intercurrent causes, the manifestations of the chronic disease present at the time the veteran seeks benefits establish service connection for the chronic disease. By treating all subsequent manifestations as service-connected, the veteran is relieved of the requirement to show a causal relationship between the condition in service and the condition for which disability compensation is sought. In short, there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id.

In addition, the Federal Circuit found that subsection (b) provides a second route by which service connection can be established for a chronic disease, which is if "evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not 'shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,' i.e., 'when the fact of chronicity in service is not adequately supported,' then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease.  Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed."  Id.  Furthermore, the Federal Circuit held that that the term "chronic disease" as set forth in subsection (b) is properly interpreted as being constrained by § 3.309(a) in that the regulation is only available to establish service connection for the specific chronic diseases listed in § 3.309(a) regardless of the point in time when a veteran's chronic disease is either shown or noted.  Id.  

Certain chronic diseases, including other organic diseases of the nervous system, may be presumed to have been incurred during service if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307(a)(3); 3.309(a) (2012).

The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b).  Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385 (2012).  The Court, in Hensley v. Brown, 5 Vet. App. 155 (1993), indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a medical relationship between the Veteran's in-service exposure to loud noise and current disability.  The Board notes that the Court's directives in Hensley are consistent with 38 C.F.R. § 3.303(d).

Analysis

Bilateral Hearing Loss

The Veteran contends that he developed bilateral hearing loss due to exposure to acoustic trauma while serving in the military.  He further maintains to have experienced on-going hearing loss since then.  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 service connection for bilateral hearing loss.  

The Veteran has stated on multiple occasions that he was exposed to extreme noise levels while fulfilling his military duties in service.  In his February 2009 claim and March 2009 statement, the Veteran indicated that his hearing loss began while "firing 105 mm Howitzers" in service.  The Veteran further stated that he was not provided with any form of hearing protection during this time.  In both statements, the Veteran asserted that he has been experiencing difficulty hearing since serving in the military, and attributed his hearing loss to his exposure to extreme noise levels in service.  

The Veteran is considered competent to relate a history of noise exposure during service.  See 38 C.F.R. § 3.159(a)(2); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses).  

The Veteran's DD Form 214 reflects that he served on active duty from September 1962 to December 1965 and that his military occupational specialty (MOS) was that of Hawk Missile Crewman.  The DD form 214 further reflects that the Veteran had two years and six months of foreign and/or sea service.  

Relevant medical evidence consists of the Veteran's service treatment records as well as the April 2009 and May 2011 VA audiological examination reports.  
Turning to the Veteran's service treatment records, at the September 1962 enlistment examination, the clinical evaluation of his ears and drums was shown to be normal, and the Veteran denied having a medical history of ear, nose or throat trouble.  On the authorized audiological examination, the examiner found his pure tone thresholds, in decibels, to be as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10(25)
10(20)
10(20)
10(20)
10(15)
LEFT
10(25)
10(20)
10(20)
10(20)
10(15)

[The Board observes that service department audiometric readings prior to October 31, 1967, must be converted from American Standards Association (ASA) units to International Standard Organization (ISO) units.  As these evaluations were conducted prior to October 1967, the Board has converted the ASA units (first threshold listed at each frequency) to ISO units (second threshold listed at each frequency) as shown above.]  These findings do not reflect a hearing loss for VA compensation purposes.  See 38 C.F.R. § 3.385.  The examiner who evaluated the Veteran at his enlistment examination did not note there to be any hearing loss in the Summary of Defects and Diagnoses section, and the Veteran was found to be qualified for enlistment.  

The remainder of the Veteran's service treatment records is clear for any complaints of, or treatment for hearing problems.  At an October 1965 separation examination, the Veteran denied a history of ear, nose, or throat trouble in his medical history report.  In addition, the clinical evaluation of his ears and drums was shown to be normal, and he had a hearing loss profile of 'H1' at the time of this examination.  On the audiological evaluation pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0(15)
0(10)
0(10)
XXXX
0(5)
LEFT
0(15)
0(10)
0(10)
XXXX
0(5)

Not only do these test results reflect an improvement in the Veteran's hearing acuity, but of particular significance is the fact that this in-service audiological evaluation did not reflect a hearing loss disability for VA compensation purposes.  See 38 C.F.R. § 3.385 (2012).  

In addition to the findings of improved hearing acuity upon separation, the Board notes that the Veteran did not seek treatment for hearing loss until many decades after his separation from service.  The first post-service evidence associated with his claims file that is relevant to this claim is his February 2009 application seeking service connection for hearing loss.  Therefore, the Board finds that hearing loss did not manifest in service or in the immediate post service years.  Because it did not manifest within one year from separation from service, the Board finds that presumptive service connection for sensorineural hearing loss is not warranted in this particular case.  See 38 C.F.R. §§ 3.307, 3.309(a).  

The Veteran's post-service medical records show that he does have a current hearing loss by VA standards.  In this regard, the Veteran underwent a VA audiological examination in April 2009.  During this examination, the Veteran reported a history of exposure to loud noises and sounds produced from the firing of Hawk missiles, 105 Howitzers, rifles, and rocket launchers.  According to the Veteran, he was not provided with any form of hearing protection while working in this environment.  The Veteran also described minimal recreational noise exposure post-service, and denied any occupational noise exposure while working as a plant manager after service.  On the authorized audiological evaluation, pure tone thresholds, in decibels were shown to be: 




HERTZ



500
1000
2000
3000
4000
RIGHT
20
25
45
60
60
LEFT
20
20
55
70
65

Speech audiometry revealed speech recognition ability of 76 percent in the right ear and 80 percent in the left ear.  

Based on her discussion with as well as her evaluation of, the Veteran, the VA audiologist diagnosed the Veteran with normal to severe sensorineural hearing loss in the left ear, and normal to moderately severe sensorineural hearing loss in the right ear.  According to the VA audiologist, the Veteran's hearing loss was not caused by, or a result of acoustic trauma while serving in the military.  She based her conclusion on the fact that the Veteran's enlistment and separation examination reports both showed his auditory thresholds to be within normal limits.  

The Veteran was afforded another VA audiological evaluation in May 2011, at which time, he once again described the various levels of noise he was exposed to both during and after service.  On the authorized audiological evaluation, pure tone thresholds, in decibels were shown to be: 




HERTZ



500
1000
2000
3000
4000
RIGHT
20
25
50
65
70
LEFT
25
25
60
70
65

Speech audiometry revealed speech recognition ability of 80 percent in both ears.  

Based on her evaluation of the Veteran, the VA audiologist diagnosed him with moderate to severe sensorineural hearing loss in the right ear, and moderately severe to severe sensorineural hearing loss in the left ear.  She further opined that the Veteran's hearing loss was not likely due to or caused by his in-service noise exposure.  In reaching this opinion, the VA audiologist noted that the Veteran's audiometric test results at enlistment and separation from service were within normal limits, and that there were no significant shifts in threshold when comparing both audiometric findings.  The VA audiologist further noted "no evidence in the record that the [V]eteran acknowledged difficulty with hearing...when he separated from the military or in the years following military service."  According to the VA audiologist, "[i]f hearing is normal at discharge, and there is no other evidence of significant changes in hearing thresholds suggestive of noise injury, we must conclude that it is less likely as not that the current hearing loss is due to a service related noise injury."  She (the VA audiologist) went on to explain that noise exposure does not always cause hearing loss and the Hensley ruling does not give clinicians the authority to disregard normal hearing exams at discharge simply because there is verified evidence of military noise exposure.  According to the VA audiologist, 

"[t]he Institute of Medicine has clearly stated that there is no way to predict if noise exposure occurs, how much if any, hearing loss would be sustained.  The presence of noise exposure does not always produce hearing loss.  There are multiple causes for sensorineural type hearing loss and in most cases an exact etiology cannot be determined.  Sensorineural hearing loss can be caused by aging, vascular disease, viral disease, autoimmune disease, noise exposure, medications, genetics or any combination of these or other factors.  We do know that auditory damage from acoustic trauma occurs instantly, which is why normal hearing results on a discharge exam so strongly suggests that any current hearing loss was not caused by military noise exposure.  Based on the available evidence, the 44 year lag in complaints of military noise exposure and veteran's history of occupational noise exposure; it is my opinion that the current hearing loss is not caused by or the result of military noise exposure."  

Upon consideration of the above evidence, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for bilateral hearing loss.  The VA examinations confirm that the Veteran currently suffers from bilateral hearing loss.  However, even taking into account the Veteran's claims of exposure to acoustic trauma while in service, the VA examiners found no link between any current hearing loss and military service based on the record.  Noting that the evidence did not show any hearing loss at the Veteran's separation from active duty, or any complaints of hearing problems following the Veteran's period of active service, the VA examiner determined that the Veteran's current hearing loss was not caused by or a result of his military service.  

Furthermore, the Board finds persuasive the absence of medical evidence showing a nexus between the Veteran's service and current hearing loss.  In that connection, the Board notes that the April 2009 and May 2011 VA audiologists acknowledged the Veteran's complaints of in-service noise exposure and hearing loss that began in service, but nonetheless concluded that it was less likely than not that the Veteran's current hearing loss was in fact due to his reported exposure to acoustic trauma in service or otherwise related to service.  In so finding, both examiners looked to the Veteran's normal audiometric results at separation, as well as the remainder of his service treatment records, which were clear for any signs or complaints of, or treatment for hearing problems, in ultimately finding that any current hearing loss was not likely related to service.  The May 2011 VA audiologist further referenced studies from the Institute of Medicine which indicate that even if noise exposure were to occur, there was no way to predict how much, if any, hearing loss would be sustained.  She also provided a list of medical factors to which hearing loss may also attributed to, and explained why normal audiometric findings at discharge demonstrate that the Veteran's hearing loss was not related to his military noise exposure.  This evidence is not contradicted by any other medical evidence of record; there is simply no medical evidence in the record supporting a finding of an etiological relationship between the Veteran's time in service, including his reported exposure to acoustic trauma, and his current hearing loss.  

Moreover, the Veteran was noted in his October 1965 separation examination report, to have normal hearing on audiological testing.  Tellingly, at that time, the Veteran specifically stated on his October 1965 medical history report that he was not experiencing any type of ear abnormalities.  It does not seem likely that he had symptoms of decreased hearing acuity that began in service and have continued without interruption to the present.  The objective evidence reflects hearing within normal limits at discharge and his denial of ear abnormality at service separation suggests that hearing acuity was not a problem at the time.  Additionally, when considering the Veteran's contentions, the VA examiner nevertheless concluded that current hearing loss was less likely than not related to service.  Post-service information in the record refers to a diagnosis no earlier than April 2009, following the Veteran's claim for benefits.  All of this evidence leads to the conclusion that the Veteran's statements regarding in-service onset of hearing loss that has continued to the present time are not credible.  Indeed, it appears very unlikely that the Veteran would have noticed loss of acuity in service when test results showed that he in fact had normal hearing acuity at separation.  

Furthermore, as a layperson without the appropriate medical training and expertise, the Veteran is simply not competent to provide a probative opinion on a medical matter, such as an etiological relationship between current hearing loss and military service.  See Bostain v. West, 11 Vet. App. 124, 127 (1998).  As noted above, the Board acknowledges that the Veteran has reported that he first experienced a loss of hearing acuity during service that has continued to the present.  The Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge (i.e., experiencing symptoms either in service or after service).  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition, (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr, 21 Vet. App. 303.  However, in this instance, the Veteran's report of continuity of symptomatology of hearing loss is not supported by the other evidence, particularly the opinion of the April 2009 and May 2011 VA examiners who examined the Veteran, considered his contentions, and nevertheless concluded that the Veteran's version of events was not the likely explanation.  His version of events is, as noted above, contradicted by the October 1965 separation examination report, which reflected normal hearing bilaterally.  

Moreover, the Board finds that the Veteran's claim is not supported by the post-service medical records as discussed above.  In fact, the first post-service record evidencing the Veteran's complaints of hearing loss is his February 2009 claim, nearly forty-four years after his separation.  In these circumstances, the Board finds that the length of time between the Veteran's separation from active duty in 1965 and first being diagnosed with bilateral hearing loss more than forty-four years later in April 2009 is evidence which weighs against continuity of symptomatology.  See Maxson v. West, 12 Vet.App.453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service.)  In addition, the Veteran's assertions are inconsistent with the evidence of record, namely, the service treatment records which are clear for any evidence or sign of hearing loss.  The fact that the medical records do not provide subjective or objective evidence that supports the Veteran's more recent recollections of continuous symptomatology since service weighs against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991).  

Furthermore, the Board notes that the Veteran had the opportunity to file a claim for his hearing disability given the fact that he filed a claim for other noted disabilities as early as 1970, however he chose not to.  Additionally, the medical evidence of record reflects that the Veteran has received ongoing medical treatment for various health-related reasons for the past few decades.  The fact that the Veteran underwent medical examinations and evaluations soon after his separation but failed to mention his ongoing hearing problems weighs against his credibility.  The Board finds it likely that if hearing problems persisted or a hearing disability was present, the Veteran would have mentioned this either during these treatment visits, or upon filing his initial claim for compensation.  As such, his claim of continuous hearing problems since service is not credible.  It is for these reasons, as well, that the lay statements alleging post-service continuity of symptomatology are rejected as not supported by the record.  In light of these facts, service connection is not warranted under 38 C.F.R. § 3.303(b).  

Relevant law and regulations do not provide for the grant of service connection in the absence of competent evidence linking the current disability to service.  The Board is satisfied that the VA examiners' opinions are adequate for deciding this appeal.  The April 2009 and May 2011 medical opinions, which are based on the entire record, including the Veteran's own history, indicate that the Veteran's bilateral hearing loss is less likely than not related to military service.  Because the VA examiners' opinions are not controverted by any other medical evidence of record, in light of the foregoing analysis and the underlying facts, the Veteran's service connection claim for hearing loss must be denied.  

Accordingly, the Board must conclude that the weight of the evidence is against the claim of service connection for bilateral hearing loss.  See 38 U.S.C.A. §1110; 38 C.F.R. § 3.303.  Because the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt provision does not apply.  See Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Accordingly, the Board concludes that service connection for bilateral hearing loss is not warranted.

Increased Rating Claims

Applicable Law

Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012).  When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012).  After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2012).  

The veteran's entire history is reviewed when making disability evaluations.  See generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1.  Where, as in the case of the Veteran's claim, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a staged rating are required.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).  If evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found.  Id.  Further, "[w]here 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 (2012).

It should also be noted that 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 v. Brown, 8 Vet. App. 202 (1995).  Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination.  

Under VA regulations, separate disabilities arising from a single disease entity are to be rated separately.  See 38 C.F.R. § 4.25 (2012); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994).


Entitlement to an initial increased rating for chronic lumbosacral strain with mild spondylosis

In the November 2008 rating decision, the RO granted service connection for chronic lumbosacral strain with mild spondylosis, post surgical, and evaluated it as 10 percent disabling, effective November 8, 2007 pursuant to Diagnostic Code 5237.  The Veteran contends that his service-connected history of acute lumbosacral strain with mild spondylosis ("low back disability") is more disabling than currently evaluated.  

On September 26, 2003, revisions to the VA rating schedule established a General Rating Formula for Diseases and Injuries of the Spine and a Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  See 68 Fed. Reg. 51454-51458 (August 27, 2003).  Diagnostic Code 5237 indicates that lumbosacral strain should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine.  Note 6 further provides that the thoracolumbar and cervical spine segments should be separately evaluated, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.  The thoracolumbar segment of the spine includes the thoracic and lumbosacral spine.  

Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent disability evaluation is contemplated when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent disability evaluation is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine.  A 50 percent disability evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and 100 percent disability evaluation is contemplated when there is unfavorable ankylosis of the entire spine.  

Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code.  

Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees.  Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.  

Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2).  Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted.  

Note (4): Round each range of motion measurement to the nearest five degrees.

Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  

Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.  

The Diagnostic Codes for the spine are as follows: 5235 Vertebral fracture or dislocation; 5236 Sacroiliac injury and weakness; 5237 Lumbosacral or cervical strain; 5238 Spinal stenosis; 5239 Spondylolisthesis or segmental instability; 5240 Ankylosing spondylitis; 5241 Spinal fusion; 5242 Degenerative arthritis of the spine (see also diagnostic code 5003); 5243 Intervertebral disc syndrome.  

Intervertebral disc syndrome (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined.  See 38 C.F.R. § 4.25 (combined ratings table).  

The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides for a 10 percent disability rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months.  A 20 percent disability rating is awarded for disability with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.  With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, a 40 percent evaluation is in order.  Finally, a maximum schedular rating of 60 percent is assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  

DC 5003, for degenerative arthritis provides that degenerative arthritis, established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200, etc.).  When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003.  38 C.F.R. § 4.71a, DC 5003.

Analysis

A.  For the period prior to March 30, 2010

Historically, the Veteran's service treatment records demonstrate that he was admitted to the U.S. Army Hospital in October 1963 with complaints of pain in the left shoulder blade after fracturing his pelvis when he was struck by a radar apparatus.  During this treatment visit, the Veteran reported to experience low back pain for the past year that was only present when he bent over, and which was not radicular in nature.  No abnormalities were observed on physical examination, and x-rays of the thoracic and cervical spine were shown to be negative for any abnormalities.  A spinal puncture was also performed, the results of which were normal.  The treatment provider determined that there were no signs of a disease on evaluation of the Veteran.  At a neurological consultation several days later, the Veteran described sharp pain in the chest and back of one month duration.  He stated that he began noticing sharp pain in the left mid-back region as well as the left arm and chest one month prior, after a game of football.  According to the Veteran, this pain has continued and increases through breathing and deep coughs.  Based on his physical evaluation of the Veteran, the treatment provider assessed him with an acute and chronic muscle strain that was complicated by conversion symptoms.  At the October 1965 separation examination, the clinical evaluation of the spine was shown to be normal and the Veteran did not report a history of back trouble in the medical history report.  

The Veteran first filed a claim for a back disability in 1970.  Private treatment records reflect that the Veteran presented at the Ervin Clinic in April 1970 with complaints of low back pain.  During this treatment visit, the Veteran provided his military history and stated that his pain began following his in-service accident.  On physical examination, the physician noted no physical limitation on lateral bending, rotation and hyperextension of the spine.  It was noted that left lateral bending produced discomfort through the sacroiliac area on the left as does hyperextension of the back.  The physician also observed the presence of tenderness over the lower lumbar spines and sacrum.  Results from the neurological examination were also within normal limits.  According to the physician, J.E., M.D., the Veteran has a chronic lumbosacral strain as a result of his in-service injury.  

The Veteran was afforded a VA examination in October 1970, at which time, the examiner observed tenderness over the lumbar spine and left lumbar muscles.  He noted that the Veteran had normal back muscles, all of which hurt at extremes.  He also noted that straight leg raising was normal without pain.  The Veteran was assessed with a history of lumbosacral strain.  

In the February 1971 decision, the Board denied the Veteran's claim for service connection for lumbosacral strain.  The Veteran did not appeal this decision and it was not until November 2007 that he filed a petition to reopen his claim for service connection for a back disability.  In support of his claim, the Veteran submitted a private treatment report dated in May 1977, which showed that the Veteran presented with complaints of low back pain of three weeks duration.  The Veteran was seen several additional times between May 1977 to August 1977, with complaints of recurring pain in the lower back.  

Report of the September 2008 VA examination reflects that the Veteran had flexion to 75 degrees, extension to 15 degrees, left and right lateral flexion to 20 degrees, and left and right lateral rotation to 20 degrees.  While he experienced pain with each exercise, the examiner did not observe any additional limitation of motion following repetitive use.  On physical examination, the examiner described the Veteran's posture and gait as normal, and noted no abnormal spinal curvatures, to include signs of kyphosis, lumbar flattening, lumbar lordosis, reverse lordosis or scoliosis.  The examiner also noted no objective abnormalities of the thoracic sacrospinalis, to include spasms, atrophy, guarding, pain with motion, tenderness or weakness.  In addition, the examiner observed no ankylosis in the thoracolumbar spine.  Based on her evaluation of the Veteran, as well as her review of the diagnostic studies, the examiner diagnosed the Veteran with chronic lumbosacral strain with mild spondylosis.  

In the November 2008 rating decision, the RO granted service connection for chronic lumbosacral strain with mild spondylosis and evaluated it as 10 percent disabling, effective from November 8, 2007.  

In considering the evidence of record under the General Rating Formula for Diseases and Injuries of the Spine, the Board concludes that the Veteran is not entitled to an initial evaluation in excess of 10 percent for his service-connected chronic lumbosacral strain with mild spondylosis for the period prior to March 30, 2010.  As previously discussed, the September 2008 VA examination report reflects that the Veteran had flexion to 75 degrees, with no additional limitation of movement upon repetitive movement.  As such, his flexion has always been shown to be greater than 60 degrees throughout the appeal.  Moreover, the combined range of motion of the thoracolumbar spine was greater than 120 degrees.  In addition, the Veteran did not exhibit any muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  In this regard, September 2008 VA examiner noted that the Veteran's spine was clear for any signs of muscle spasm, and the Veteran's gait was described as normal at both examinations.  VA treatment records reflect the Veteran's complaints of ongoing and worsening low back pain since service.  See VA treatment records dated June 2009 to January 2010.  The more recent VA treatment records also reflect the Veteran's complaints of worsening pain in his low back region.  In September 2009, the Veteran reported that the pain in his low back region was worsening and radiating outward.  According to the Veteran, he had to quit his job because he was unable to perform his duties any longer.  During the January 2010 VA treatment visit, the Veteran stated that his back was hurting so badly he could barely walk.  However, these treatment records focus on the Veteran's subjective complaints and do not address the objective criteria, to include range of motion measurements, to determine whether he was entitled to a higher disability rating

The Board has also considered whether the Veteran is entitled to a higher rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  The Veteran denied experiencing any incapacitating episodes of spine disease at his September 2008 VA examination.  Indeed, his medical records are devoid of any findings, notations or treatment for any episodes of incapacitation, and there are no medical records indicating his physician recommended or prescribed bed rest.  Additionally, the examiner noted that the Veteran was currently employed as a truck driver and had not lost any time from work during the last twelve month period.  Therefore, the medical evidence does not show that the Veteran has had incapacitating episodes with a total duration of at least two weeks, but less than four weeks, during the past twelve months, and a higher rating is not warranted under the criteria for intervertebral disc syndrome.  

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 service-connected spine 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 assigned 10 percent rating, and no higher.  In this regard, the Board observes that the Veteran has complained of pain on numerous occasions.  The Board also acknowledges the objective medical findings, which reflect the Veteran's complaints of pain when conducting his range of motion exercises.  However, as previously noted, the VA examiner did not observe evidence of additional limitation of motion following repetitive movement.  In addition, although the Veteran described moderate flare-ups of pain every couple of months, he did not report any functional impairment during these flare-ups.  Furthermore, the examiner noted that the Veteran's low back disability had no effect on his ability to feed, bathe, dress or groom himself and only a moderate effect on his ability to do his chores, or participate in sports or recreational activities.  Indeed, the Board finds that the effect of the pain in the Veteran's lumbar spine is contemplated in the currently assigned 10 percent disability evaluation.  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.  Therefore, the Board concludes that an evaluation in excess of 10 percent for the Veteran's low back disability is not warranted.  

The Board recognizes the Veteran's statements attesting to his constant pain and limited range of motion.  The Board notes that lay persons can attest to observable symptomatology.  In addition, the Veteran's statements describing his symptoms are considered to be competent evidence.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), Layno v. Brown, 6 Vet. App. 465, 469 (1994), see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2007).  These statements, however, must be viewed in conjunction with the objective medical evidence as required by the rating criteria.  In this regard, the objective medical evidence, including the VA and private treatment records and the September 2008 VA examination, include the information necessary to rate the Veteran's disability in accordance with the rating criteria and both examiners considered the Veteran's reported symptomatology.  Thus, when considering the overall evidence of record, including the Veteran's statements, the Veteran's disability does not warrant an initial disability rating in excess of 10 percent for the period prior to March 30, 2010.  

In conclusion, the Board finds that Veteran's level of disability more closely approximates the criteria for a 10 percent disability rating and a higher disability rating for the period prior to March 30, 2010 is not warranted.  The Board finds that the preponderance of the evidence is against the Veteran's claim for an initial disability rating in excess of 10 percent for the period prior to March 30, 2010, and therefore the claim must be denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

With respect to any neurological complications, the Board finds that a separate disability rating is not warranted because the objective medical evidence does not demonstrate that the Veteran suffers from a separate neurological disability distinct from his service-connected chronic lumbosacral strain with mild spondylosis.  The older treatment records are clear for any neurological abnormalities.  A review of the October 1970 VA examination reports reflects that the straight leg raising test produced normal results, the knee and ankle jerks were shown to be normal, and the Veteran's sensation to stimuli was normal in the lower extremities.  Furthermore, the Veteran's motor, sensory and reflex examination findings were shown to be normal and equal in the lower extremities bilaterally at the September 2008 VA examination.  While the Veteran reported that he began developing acute symptoms that were radicular in nature in 1976, he also stated that he underwent a lumbar discectomy during this time which helped resolve his symptoms.  Additionally, the Veteran has not reported to have any bowel or bladder symptomatology associated with his low back disability, and the medical evidence of record does not reflect any such pathology.  Thus, a separate compensable rating for such symptoms is not warranted.  See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2012).  

B.  On and after March 30, 2010

The Veteran was afforded another VA examination of his spine in April 2010, at which time, he provided his military history and added that he underwent a discectomy at L4 in 1976.  According to the Veteran, while this surgery helped resolve his acute symptoms, he has continued to experience ongoing back symptoms that have gradually worsened throughout the years.  Currently, the Veteran has daily constant pain in the lumbar area.  On physical examination, the Veteran was shown to have flexion to 30 degrees, extension to 10 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 15 degrees.  Although the examiner observed objective evidence of pain following repetitive motion, he did not observe additional limitation of motion after repetitive use.  The Veteran reported to experience spinal flare-ups every three to four months which last three to seven days in duration, and which are brought on when lifting or bending.  It was noted that he used a cane, brace and wheelchair to help him move around.  Upon further inspection of the spine, the examiner described the Veteran's gait as antalgic but noted that his posture and head position were normal.  According to the examiner, the Veteran's spine was negative for any abnormal spinal curvatures or signs of ankylosis.  

More recent private treatment records reflect that the Veteran was seen at Bluegrass Orthopaedics & Hand Care in October 2011 with complaints of chronic low back pain.  In the report, the physician, H. L., M.D., reviewed the Veteran's medical history and noted that the Veteran underwent back surgery in the 1970's and eventually improved and was able to work until 2009, when he was considered unable to work because he was considered unreliable with respect to absenteeism due to intermittent neck and low back pain.  On examination, it was noted that the Veteran was able to perform range of motion exercises despite some limited movement.  There was tenderness on extension at L4-5 and L5-S1.  However the Veteran had no pain on extension and there was no right or left muscle wasting.  

In considering the evidence of record under the General Rating Formula for Diseases and Injuries of the Spine, the Board concludes that the Veteran is not entitled to an initial evaluation in excess of 40 percent for his service-connected chronic lumbosacral strain with mild spondylosis for the period on and after March 30, 2010.  In this regard, the April 2010 VA examiner observed no ankylosis in the thoracolumbar spine.  Indeed, there is no medical evidence diagnosing the Veteran with ankylosis of the spine, and there are none of the previously mentioned symptoms indicative of unfavorable ankylosis.  In fact, the April 2010 VA examination reflects that the Veteran had flexion to 30 degrees, extension to 20 degrees, left and right lateral flexion to 10 degrees, and left and right lateral rotation to 15 degrees.  In addition, the more recent private treatment records reflect that the Veteran was able to perform the range of motion exercises despite his movement being somewhat restricted and limited.  As such, the medical evidence of record does not show his spine to be fixed.  

Even when taking into account limited movement and the Veteran's complaints of pain on motion, such complaints do not approximate ankylosis.  The Board notes that 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)).  The Board does not doubt that the Veteran has pain; however, in light of the ranges of motion documented at the examination and treatment visit, the Board finds that the Veteran has not met the criteria for an evaluation in excess of 40 percent under the revised rating criteria.  Thus, the Veteran has not been shown to have met the criteria for an evaluation in excess of 40 percent for his chronic lumbosacral strain with mild spondylosis for the period on and after March 30, 2010.

The Board has also considered whether the Veteran would be entitled to a higher rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  However, the Veteran never reported to experience any incapacitating episodes during his examination or during his private treatment visits.  Indeed, the Veteran denied experiencing any incapacitating episodes of spine disease at the April 2010 VA examination.  Moreover, the medical evidence of record does not show that the Veteran has had incapacitating episodes with a total duration of at least six weeks during the past twelve months.  While the record reflects that the Veteran experiences flare-ups of spinal pain every three to four months that last three to seven days in duration, and that he has to limit most of his activities for several days during this time, there are no treatment records documenting the Veteran as having had bed rest prescribed by the physician due to his spine disability.  Indeed, the medical evidence of record is negative for any evidence or documentation indicating that the Veteran has been prescribed with bed rest by any of his physicians or treatment providers.  Therefore, the medical evidence does not show that the Veteran has had incapacitating episodes with a total duration of at least six weeks during the past twelve months, and a higher rating is not warranted under the criteria for intervertebral disc syndrome.  

The Board has also considered the provisions of 38 C.F.R. § 4.40, 4.45, 4.59, and the holdings in DeLuca.  However, the Veteran is in receipt of the maximum schedular evaluation for limitation of motion of the spine.  Furthermore, the April 2010 examiner commented that the Veteran's range of motion was not additionally limited following repetitive movement.  Therefore, the Board concludes that an evaluation in excess of 40 percent for the Veteran's low back disability for the period on and after March 30, 2010 is not warranted.  

With respect to any neurological complications, the Veteran complains of pain that radiates into the left hip as well as symptoms of sudden weakness in his lower extremities.  See April 2010 VA examination report.  However, the Veteran underwent a neurological evaluation of his lower extremities during this examination, the findings of which were clear for any abnormalities.  In July 2010, the Veteran filed a separate claim for service connection for neuropathy in the upper and lower extremities secondary to his low back disability.  He was afforded a VA neurological examination in September 2010, at which time, he described "total numbness" in his toes that travels into the feet at the mid metatarsal area.  A neurological evaluation of the lower extremities was performed, and findings from the sensory examination revealed decreased sensation with vibration, pain/pinprick, and position sense.  In addition, the reflex examination findings revealed knee jerk of 1+ and ankle jerk of 1+ bilaterally.  The Veteran also underwent nerve conduction studies and an electromyography (EMG), the results of which were clear for any signs of radiculopathy but revealed sensory and motor axonal neuropathy in the lower extremities.  

Based on her evaluation of the Veteran, as well as her review of the electrodiagnostic test results, the examiner diagnosed the Veteran with bilateral peripheral sensory polyneuropathy of the lower extremities.  According to the examiner, the Veteran did not have radiculopathy of the lower extremities caused by the lumbar spine disability.  She explained that the Veteran is diagnosed with peripheral polyneuroapthy of the lower extremities which is not a condition of radiculopathy, and which involves multiple sensory nerves and is a condition often associated with conditions such as a history of alcohol use and diabetes mellitus.  The examiner noted that the Veteran reported a history of alcohol use in the past, and determined that his neuropathy of the lower extremities was not secondary to his lumbar spine condition as it was likely due to a history of persistent alcohol use.  As such, while the Veteran has been diagnosed as having a neurological disorder in his lower extremities, the competent medical evidence has not related this disorder to the Veteran's low back disability.  To the contrary, the objective medical evidence clearly relates the Veteran's neurological disorder to a condition other than the low back disability.  Therefore, the Board finds that a separate rating for a neurological disability in the lower extremities is not warranted for the period on and after March 30, 2010.  Additionally, the Veteran has not reported to have any bowel or bladder symptomatology associated with his low back disability, and the medical evidence of record does not reflect any such pathology.  Thus, a separate compensable rating for such symptoms is not warranted.  See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2012).  

The Board acknowledges that the Veteran is competent to testify as to symptoms associated with disability which are non-medical in nature, however, he is not competent to testify as to the severity of his disability.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (noting that lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature).  As such, entitlement to an disability rating greater than 40 percent for service-connected chronic lumbosacral strain with mild spondylosis, post-surgical, for the period on and after March 30, 2010 must be denied.  

Entitlement to an initial increased rating for Cervical Spine Degenerative Arthritis

The Veteran is currently assigned a 30 percent disability evaluation for his cervical spine degenerative arthritis and disc disease ("cervical spine disability") pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5243.  He contends that his service-connected cervical spine disability is more disabling than currently evaluated.  

Under the General Rating Formula for Diseases and Injuries of the Spine, an evaluation of 30 percent is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine.  An evaluation of 40 percent is warranted for unfavorable ankylosis of the entire cervical spine.  An evaluation of 50 percent is warranted for unfavorable ankylosis of the entire thoracolumbar spine.  An evaluation of 100 percent requires unfavorable ankylosis of the entire spine.  

As previously discussed above, the Veteran's service treatment records demonstrate that he was admitted to the hospital in October 1963 after experiencing an onset of pain in the left shoulder blade and subscapular region while playing football.  He also described worsening pain on the left region of his chest of one month duration.  On physical examination, the treatment provider observed signs of weakness at the left deltoid and biceps brachialis muscle, as well as the C5 to C6 region.  Based on the evaluation of the Veteran, the treatment provider assessed him with a possible cord lesion or tumor at the C5-C6 level.  An x-ray of the cervical spine was clear for any abnormalities, and results of the neurological evaluation were also shown to be unremarkable.  The Veteran was assessed with left shoulder girdle acute and chronic muscle sprain complicated by conversion symptomatology.  

The post-service medical records reflect the Veteran's complaints of ongoing back pain.  The Veteran was afforded a VA examination in connection to his cervical spine condition in April 2010, at which time, he provided his medical history and reported to have injured his neck near the left shoulder blade while playing football in service.  According to the Veteran, he has experienced intermittent lower neck pain and undergone intermittent therapy with a physician and chiropractor throughout the years since this incident.  The Veteran reported a history of fatigue, decreased motion, stiffness, weakness, and spasms, as well as a history of daily pain in the cervical region which he described as constant, aching and mild in nature.  The Veteran also reported to experience severe flare-ups on a weekly basis that last one to two days in duration whenever he flexes his head forward or lifts anything.  On physical examination, the Veteran's posture was stooped but normal in appearance.  He was shown to have flexion to 15 degrees, extension to 10 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 30 degrees.  While he experienced pain with each exercise, the examiner did not observe any additional limitation of motion following repetitive use.  The Veteran also underwent an x-ray of the cervical spine, the impression of which revealed mild degenerative disc disease with mild foraminal narrowing at C3-C4 and C4-C5.  

VA treatment records dated in January 2011 reflect that the Veteran contacted and visited the VA medical center with complaints of neck pain that had worsened recently.  According to the Veteran, the pain radiated up and down his back and traveled to his left upper extremity as well.  The Veteran also described numbness and tingling in the left arm.  A February 2011 magnetic resonance imaging (MRI) of the cervical spine revealed "[d]egenerative changes producing moderate-to-severe bilateral foraminal narrowing at C4-C5 with some flattening of the cord at C6-C7 secondary to diffuse disc bulge."  

The Veteran was afforded another VA examination in connection to his cervical spine disability in May 2011, at which time, he reported a worsening in his cervical spine symptoms since his last VA examination.  Report of this examination reflects that the Veteran had flexion to 5 degrees, extension to 0 degrees, right lateral flexion to 5 degrees, left lateral flexion to 0 degrees, and right and left lateral rotation to 10 degrees.  The Veteran experienced pain with each exercise, and when asked whether there was additional limitation of motion following repetitive use, the examiner noted that the Veteran had severe pain when attempting range of motion exercises and was unable to perform repetitive motion for the various exercises.  On physical examination, the examiner described the Veteran's gait as antalgic and noted signs of lordosis of the upper spine.  The examiner further noted no abnormal spinal curvature and no signs of ankylosis in the cervical spine.  Based on her discussion with and evaluation of the Veteran, as well as her review of the diagnostic records, the examiner diagnosed the Veteran with spinal stenosis, degenerative disc disease including bulging discs, and degenerative arthritis of the cervical spine with chronic pain and limited range of motion.  

The Veteran was seen at Bluegrass Orthopaedics & Hand Care in October 2011 with complaints of "terrible neck pain" that was localized at the back of the neck and travelled to the top of the head radiating into the left upper extremity.  The Veteran also reported numbness and tingling in the thumb and index finger.  On examination of the neck, it was noted that the Veteran had "limitation in motion of approximately 50 degrees to the right and to the left with tenderness to the back of the neck, especially over C5-6, C6 and C7-T11."  

In considering the evidence of record under the General Rating Formula for Diseases and Injuries of the Spine, the Board finds that an initial increased evaluation is not warranted for the Veteran's cervical spine degenerative arthritis and disc disease.  As noted above, in order for the Veteran to meet or approximate the criteria for a rating in excess of 30 percent for his service-connected neck disorder under the current rating criteria for the cervical spine, there must be unfavorable ankylosis of the entire cervical spine.  A review of the medical evidence is absent any findings of ankylosis.  In this regard, neither VA examiner observed any ankylosis in the thoracolumbar spine and the medical evidence of record is devoid of any findings, treatment or diagnosis of unfavorable ankylosis.  Indeed, the April 2010 VA examination report reflects that the Veteran had flexion to 15 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 30 degrees.  The May 2011 VA examination reflects that the Veteran's cervical range of motion, while limited, is not fixed in flexion or extension.  This examiner acknowledged the fact that the Veteran had significant limitation of motion in the cervical spine but added that based on the February 2011 results and the more recent VA treatment records dated in March 2011, there was no clinical evidence of ankylosis.  In addition, the more recent private treatment records reflect that the Veteran was able to move his neck 50 degrees to the right and left.  As such, while the Veteran's treatment records reflect limited cervical range of motion, they are absent any findings that his cervical spine is fixed in flexion or extension.  Additionally, the Veteran has not been shown to have any of the above-mentioned symptoms cited in 39 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (5) in conjunction with fixed flexion or extension in the cervical spine.  Thus, a rating of 40 percent under the General Rating Formula for Diseases and Injuries of the Spine is not warranted.  

The Board has also considered whether the Veteran would be entitled to a higher rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  However, the medical evidence of record does not show the Veteran to have incapacitating episodes with a total duration of at least four weeks but less than six weeks during the past 12 months.  Although the Veteran reported two severe episodes of neck pain over the years which resulted in his hospitalization and him having to miss work for several weeks (see April 2010 VA examination report), there are no treatment records documenting the Veteran as having been prescribed bed rest by his physician due to his spine disability.  In fact, the Veteran denied any incapacitating episodes of spine disease at the April 2010 VA examination.  The Board acknowledges the May 2011 VA examination report wherein the Veteran reported that he was admitted to the Emergency room for worsening neck symptoms two months prior, and was prescribed bed rest for one to two days after being discharged home.  Even if the Veteran did experience incapacitating episodes, the duration of these episodes lasted approximately two days.  Therefore, the medical evidence does not show that the Veteran has had incapacitating episodes with a total duration of at least four weeks, but less than six weeks, during the past twelve months, and a higher rating is not warranted under the criteria for intervertebral disc syndrome.  

The Board has also considered the provisions of 38 C.F.R. § 4.40, 4.45, 4.59, and the holdings in DeLuca.  However, the Veteran is in receipt of the maximum schedular evaluation for limitation of motion of the spine.  Furthermore, the April 2010 examiner commented that the Veteran's range of motion was not additionally limited following repetitive movement.  Therefore, the Board concludes that an evaluation in excess of 30 percent for cervical spine disability is not warranted.  

With respect to the Veteran's neurological complications, the Veteran has already been service-connected and separately rated for neurological impairment in his left upper extremity.  The more recent medical records are clear for any complaints of pain, numbness or tingling in the right upper extremity and the objective medical evidence was clear for any neurological abnormalities in the right upper extremity  Indeed, the Veteran's motor strength during elbow flexion and extension, wrist flexion and extension, and finger flexors and abduction was 5/5 in the right upper extremity at the April 2010, September 2010 and May 2011 VA examinations.  In addition, all three examination reports demonstrate that the Veteran's reflexes in the biceps, triceps, and brachioradialis were 2+ in the right upper extremity.  Furthermore, during his October 2011 treatment visit at Bluegrass Orthopaedics and Hand Care, it was noted that the Veteran had "good functional deltoid, biceps, triceps, wrist extensors and flexors. . . ."  While the Veteran denied experiencing any neurological problems in the right upper extremity at the September 2010 VA examination, the electrodiagnostic findings revealed signs of polyneuropathy.  Based on these findings, the VA examiner determined that the Veteran's right upper extremity was in normal condition and that any findings of bilateral polysensory neuropathy in the upper extremities was related to long term persistent alcohol use.  She appears to have only related the Veteran's left upper extremity and chest wall intermittent nerve impingement to his cervical spine disability.  Thus, a separate compensable rating for such symptoms is not warranted.  See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2012).  

In conclusion, the Board finds that Veteran's level of disability in the cervical spine more closely approximates the criteria for a 30 percent disability rating and a higher disability rating is not warranted.  The Board finds that the preponderance of the evidence is against the Veteran's claim for an initial disability rating in excess of 30 percent, and therefore the claim must be denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Entitlement to an initial increased rating for Residuals of Hairline Fracture of the Left great toe

Service connection for residuals of a hairline fracture of the left great toe was granted in a November 2008 rating action, and an initial 10 percent disability rating was assigned effective November 8, 2007, under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5279.  This code provides a maximum 10 percent rating for unilateral or bilateral anterior metatarsalgia (Morton's disease).  See 38 C.F.R. § 4.71a, Diagnostic Code 5279 (2012).  

The record on appeal in this case includes the Veteran's service treatment records which contain a December 1964 x-ray of the left foot and toes, the report of which reveals "a dislocation of the distal phalanx on the proximal phalanx of the [first] toe."  In addition, "[t]he distal first phalanx...reveal[ed] a hairline lucency suggestive of a fracture through the articulating surface of the first phalanx."  A December 1964 clinical note reflects that the Veteran's left foot was placed in a cast several weeks prior due to the dislocated bone in his foot, and that the cast had to be reapplied several days prior at Nuremburg Hospital.  A January 1965 clinical report reflects that the Veteran's cast was removed due to complaints of pain in his left foot.  

Private records issued by the Veteran's physician, Dr. Ritterbusch and dated in January 2000, indicate that the Veteran presented with complaints of pain and tenderness in his great toe and his second and third toe metatarsophalangeal (MTP) joints.  Records dated from February 2000 to April 2004 reflect that the Veteran was seen on occasion with complaints and signs of tenderness and swelling over the MTP joint of the great toe.  The Veteran underwent x-rays of his left toe in June 2000, the results of which showed some chondrosclerosis at the MTP joint.  X-rays were later performed in April 2004, the findings of which showed calcification in the periarticular tissue of the second MTP and squaring of the metatarsal head.  These records reflect that the Veteran was alternately diagnosed with inflammatory arthritis and gout of the left great toe.  

At the September 2008 VA examination, the Veteran provided his medical history and explained that he injured his left great toe in a motor vehicle accident in 1964.  According to the Veteran, he experiences pain in the left great toe with prolonged ambulation, and is unable to walk or wear a shoe during acute inflammatory flare-ups which include swelling, heat, and exquisite tenderness of the affected joint.  The Veteran described symptoms of pain, heat, redness, stiffness and weakness in his left great toe while standing and walking, and sometimes at rest.  He also reported flare-ups of foot joint disease several times a year, which last one to two days in duration.  On physical examination, the examiner observed objective evidence of weakness in the left great toe, as the flexor and extensor strength was 4/5 in the left great toe.  The Veteran also underwent an x-ray of the left foot, the findings of which revealed "[g]outy arthritis of the lateral aspect of the great toe metatarsophalangeal articulation in early phase with calcified tophus seen but no significant marginal erosion. . . ."  Based on her discussion with, as well as her evaluation of the Veteran, the examiner diagnosed the Veteran with left great toe distal interphalangeal (DIP) joint hairline fracture with weakness and gouty arthritis of left metatarsophalangeal joint.  

In a May 2009 statement, the Veteran indicated that his left toe condition continues to cause him severe pain and added that he has never been able to bend his toes since his in-service accident.  

The Veteran was afforded another VA examination in connection to his left toe disability in March 2010, at which time he described chronic daily pain in the left great toe and second toe region that is mild to moderate in nature.  According to the Veteran, he noticed the onset of decreased sensation in the third, fourth and fifth toes, extending to just proximal to "MP" joint six months prior.  The Veteran also described intermittent swelling in the left toe area and forefoot accompanied by severe pain.  When asked to identify the type of symptoms experienced and the location of these symptoms, he described pain in the forefoot as well as the region surrounding the great toe and second toe on both the dorsal and plantar surface.  The Veteran also reported to experience swelling in the forefoot, and symptoms of redness in the MP joint and great toe.  The Veteran also reported to experience flare-ups of foot joint disease one to three times a month which can last greater than two, but less than seven days.  He stated that these flare-ups are precipitated by certain activities such as prolonged standing or walking, and alleviated by pain, medication, and rest.  

On physical examination, the examiner observed objective evidence of painful motion with flexion and extension of the first MP joints of the great toe and second toe, mild swelling of the forefoot with mild redness, and tenderness to palpation over the MP joint great toe and second toe.  The examiner also noted evidence of weakness during flexion and extension of the great toe and second toe.  In addition, the examiner observed decreased sensation in all five toes.  With regard to whether there was evidence of abnormal weight bearing, the examiner noted that the Veteran had an unusual shoe wear pattern.  Based on his discussion with, as well as his evaluation of the Veteran, the examiner diagnosed the Veteran with left great toe DIP joint hairline fracture, dislocation of left great toe and second toe, with residual pain, weakness and limited range of motion.  He also assessed the Veteran with gouty arthritis in the lateral aspect of the great toe metatarsophalangeal joint, left foot.  

Applying the facts set forth above to the applicable rating criteria, the Board finds that the preponderance of the evidence does not support assigning a disability rating greater than 10 percent for the Veteran's service-connected hairline fracture of the left great toe.  The Board notes initially that the Veteran currently is in receipt of the maximum 10 percent rating available for his service-connected hairline fracture of the left great toe under Diagnostic Code 5279.  See 38 C.F.R. § 4.71a, Diagnostic Code 5279 (2012).  Thus, other potentially applicable rating criteria for evaluating foot disabilities must be considered by the Board in evaluating the Veteran's claim for a higher rating for his service-connected residuals of hairline fracture of the left great toe.  

However, the Board finds no other related diagnostic codes pertaining to the Veteran's left toe disability that would result in an initial evaluation in excess of 10 percent.  The medical evidence of record does not indicate pes planus, atrophy of the musculature, disturbed circulation and weakness of the feet, claw foot, hallux rigidus, hammer toe, or malunion or nonunion of the tarsal or metatarsal bones in either foot.  Accordingly, Diagnostic Codes 5276, 5277, 5278, 5280, 5281, 5282 and 5283 are not applicable.  

Under 38 C.F.R. § 4.71a, Diagnostic Code 5284, a compensable 10 percent rating can be assigned for a foot injury that is moderate in nature.  In addition, a 20 percent rating is assignable for a moderately severe foot injury and a 30 percent rating is assignable for severe foot injuries.  See 38 C.F.R. § 4.712, Diagnostic Code 5284 (2012).  However, after a review of the evidence of record, the Board finds that the Veteran's symptoms have remained consistent throughout the duration of the appeal.  Although the Veteran reports that his symptoms have progressively worsened throughout the years, this would not constitute an increase in the rating of his residuals of hairline fracture of the left great toe.  Even at their most severe, the Board finds that the Veteran's residuals of hairline fracture of the left great toe have been no worse than the criteria contemplated by a 10 percent rating under Diagnostic Code 5284 for a moderate foot injury.  38 C.F.R. § 4.71a, Diagnostic Code 5284.  Indeed, the September 2008 VA examination was absent any objective manifestations or signs of painful motion, swelling, tenderness, instability, or weakness in the left toe.  In addition, it was noted that the Veteran's left toe disability had no effect on the Veteran's ability to bathe, travel, dress, groom or drive, and only a mild effect on his ability to exercise, shop and perform his chores.  Furthermore, at the March 2010 VA examination, the Veteran himself described chronic and daily pain in the great toe that was mild to moderate in nature.  Although the examiner observed evidence of painful motion, swelling, tenderness and weakness in the left great toe, he noted that the Veteran's left toe disability had no effect on his ability to travel, feed, bathe, dress and groom himself, and no more than a mild effect on his ability to travel and participate in recreational activities, and a moderate effect on his ability to shop, exercise and perform his chores.  As such, the VA examination reports are void of any documentation of the Veteran's left great toe disability displaying a moderately severe foot injury.  

VA regulations concerning functional loss are not applicable where a disability is rated at the maximum level provided by the diagnostic code under which it is rated, as is the Veteran's situation.  VAOPGCPREC 36-97 (holding that consideration must be given to the extent of disability under 38 C.F.R. §§ 4.40 and 4.45 "when a Veteran has received less than the maximum evaluation" under Diagnostic Code 5293); see also Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (remand for the Board to consider functional loss due to pain was not appropriate where the claimant was already receiving the maximum disability rating available for limitation of motion); Spurgeon v. Brown, 10 Vet. App. 194, 196 (1997) (although the Board is required to consider the effect of the Veteran's pain when making a rating determination, the rating schedule does not require a separate rating for pain).  Therefore, an increased disability rating based on functional loss is not warranted.  

The Board acknowledges the Veteran's belief that the residual symptoms stemming from his left great toe disability are more severe than the current disability rating reflects.  The Board must consider the entire evidence of record when analyzing the criteria in the ratings schedule.  While the Board recognizes that the Veteran is competent to provide evidence regarding his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology.  Such evidence must come from a medical professional.  See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  

Based on the evidence described above, the Board concludes that the totality of the evidence of record has not shown that the Veteran's service-connected residuals of hairline fracture of the left great toe warrants a rating in excess of 10 percent at any time during the appeal period.  Thus, this claim must be denied.

In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1).  As noted above, the very symptoms the Veteran has reported and have been found on examinations are those contemplated by the rating criteria.  Therefore, referral for consideration of an extraschedular rating is not warranted.


ORDER

Entitlement to service connection for bilateral hearing loss is denied.  

Entitlement to an initial disability rating in excess of 10 percent for chronic lumbosacral strain with mild spondylosis, post-surgical, for the period from November 8, 2007 to March 29, 2010, is denied.  

Entitlement to an initial disability rating in excess of 40 percent for chronic lumbosacral strain with mild spondylosis, post-surgical, for the period on and after March 30, 2010, is denied.  

Entitlement to an initial disability rating in excess of 30 percent for cervical degenerative arthritis and disc disease, is denied.  

Entitlement to an initial disability rating in excess of 10 percent for residuals of hairline fracture of the left great toe, is denied.  


REMAND

The law provides that the VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence.  38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012).  Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim.  38 U.S.C.A. § 5103, 5103A (West 2002, Supp. 2012); 38 C.F.R. § 3.159.  

Right and Left Knee Disabilities

The Veteran contends that his current bilateral knee disability was incurred in service.  According to the Veteran, his knees were damaged while participating in various basic training exercises, to include squat jumps, deep knee bends and duck walks, in service.  See January 2009 and May 2009 statements of the Veteran.  

Turning to the service treatment records, the Board notes that the Veteran's records are clear for any complaints, notations, or signs of bilateral knee problems.  The September 1962 enlistment examination is negative for any complaints, treatment or diagnosis of a bilateral or unilateral knee disorder.  Also, the clinical evaluations of the Veteran's lower extremities during both examinations were shown to be normal, and the Veteran denied a history of a trick or locked knee in his medical history report.  In addition, the Veteran had a physical profile of 'P1' at the time of this examination.  The remainder of the Veteran's service treatment records are clear for any complaints of knee problems.  However, the Board notes that the Veteran fractured his right pelvis in May 1963 and after being evaluated by the medical examiner, he was instructed to refrain from certain training exercises, to include contact athletics, squat jumps, prolonged standing and walking.  See May 1963 Physical Profile report.  At the October 1965 separation examination, the clinical evaluation of the Veteran's lower extremities was shown to be normal, and he denied a history of a trick or locked knee in the medical history report.  

Post-service treatment records generated at Dr. Ritterbusch's office, and dated from December 1999 to July 2002, reflect that the Veteran first presented in December 1999 with complaints of right knee problems.  According to the Veteran, his right knee had been bothering him for some time, and worsened whenever he got out of a chair or climbed a staircase.  On physical examination, Dr. Ritterbusch observed effusion and crepitus in the right knee and assessed the Veteran with probable degenerative changes, and chondromalacia of the patellofemoral joint.  Subsequent treatment records reflect the Veteran's ongoing complaints of, and treatment for, his right knee condition.  In July 2002, the Veteran underwent an arthroscopic procedure of the right knee, which included a partial medial meniscectomy and a chondral shaving of the patella.  

In March 2010, the Veteran presented at the VA medical center (VAMC) with complaints of pain, swelling and giving away in his right knee.  According to the Veteran, he had been experiencing problems with both his knees ever since he was in boot camp in service.  The Veteran also underwent an x-ray of the right knee, the findings of which revealed the presence of chondrocalcinosis, some bony fragmentation along the medial aspect of the right proximal tibia, and moderate degenerative arthritic changes throughout the right knee.  The record appears to reflect that the Veteran also underwent an x-ray of the left knee, the findings of which revealed moderate degenerative arthritis changes with chondrocalcinosis.  

Given the nature of the Veteran's condition and its observable symptoms, the Board finds that the Veteran is competent to report that he developed bilateral knee pain in service and has suffered from this pain since service.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses).  However, the Board does not find the Veteran credible with regard to his claims of continuing knee problems since service.  In this regard, the Board highlights the fact that the Veteran's service treatment records are clear for any complaints of, or treatment for knee problems, and the Veteran denied experiencing any knee problems at the October 1965 separation examination.  If the Veteran had been experiencing knee problems in service, chances are he would have documented it on the portion of the medical history report which specifically asked whether he was experiencing knee problems.  The October 1965 medical history and examination reports which were negative for any complaints, signs, or notations of knee problems are more probative than the remote assertions of the Veteran made in the context of a current claim for benefits.  See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the Veteran).

The Veteran has not been afforded a VA examination in connection with his claims for service connection for a right and left knee disability.  In light of the May 1963 Physical Profile report which reflects that the Veteran did at some point participate in rigorous training exercises, to include squat jumps, in service; the Veteran's lay assertions of ongoing knee problems since service, and current diagnoses of a right and left knee disorder, the Board finds that the Veteran's claims for service connection for a bilateral knee disability should be remanded for a VA medical examination and medical opinion.  

TDIU

The Board notes that the issue of whether the Veteran is entitled to a TDIU due to his service-connected disorders was raised in February 2009.  In addition to his service-connected low back, cervical spine, and residuals of hairline fracture of the left great toe disabilities, the Veteran is also service-connected for tinnitus, which is evaluated as 10 percent disabling; residuals of a healed fracture of the right pelvis, which is evaluated as noncompensably disabling; and left upper extremity and chest wall intermittent nerve impingement, which is evaluated as noncompensably disabling.  His current combined rating for these service-connected disabilities is 70 percent  See 38 C.F.R. §§ 4.16(a), 4.25.  
In the July 2009 rating action, the RO denied the Veteran's claim for entitlement to TDIU.  The Board notes that the Veteran had not established service connection for his cervical spine disability at the time of this decision.  Moreover, the Veteran's low back disability was evaluated as 10 percent disabling at the time of this decision.  

Since this rating decision, service connection for the Veteran's cervical spine disability has been established and the disability rating for his low back disability has been increased to 40 percent.  An August 2009 Decision issued by the Office of Employment and Training - Division of Unemployment Insurance Appeals Branch, indicates that the Veteran was last employed as a truck driver, and was placed on light duty work restrictions in June 2009 which restricted him from activities involving heavy lifting and lifting anything over ten pounds for one month due to a non-work related back injury.  It appears that the Veteran's employer did not place him in a light duty position and instead removed the Veteran from the work schedule.  The remainder of the decision reflects that the Veteran was discharged for reasons other than misconduct, and not disqualified from receiving unemployment benefits.  At the May 2011 VA examination in connection with his claim for a cervical spine disability, the VA examiner noted that the Veteran was not working mainly due to medical reasons.  The Veteran explained that he was terminated from his last job because he was unable to perform his occupational duties as a result of his low back and neck condition.  

The Court has held that 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 initial adjudication of a claim or as part of a claim for increased compensation.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  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 of that claim for an increased rating is whether a total rating based on individual unemployability as a result of that disability is warranted.  Id at 455.  In light of this new evidence, namely the August 2009 issued by the Office of Employment and Training, and statements made by the Veteran at the May 2011 VA examination, a remand is necessary to schedule him for a VA examination to address this matter.  

Accordingly, the case is REMANDED for the following action:

1.  Issue to the Veteran a VCAA notification letter pertaining to the issue of entitlement to a TDIU.  

2.  Schedule the Veteran for a VA examination with a VA orthopedist to determine the nature and etiology of any knee disability present.  The claims folder and all records on Virtual VA must be made available to the examiner in conjunction with the examination.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, and all pertinent pathology should be noted in the examination report.  

Following a review of the record and an examination of the Veteran, the examiner should specify the nature of any current right and left knee disability and provide the diagnoses for all identified disabilities.  For any knee disability diagnosed on examination, and/or during the pendency of the appeal which has resolved at the time of the examination, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such knee disability had its clinical onset in service or is otherwise related to the Veteran's military service, to include his participation in rigorous basic training exercises in service.  In answering this question, the examiner should address the Veteran's assertions that he has experienced ongoing knee problems since service, and should set forth the medical reasons for accepting or rejecting the Veteran's statements regarding continuity of symptoms since military service.  [Before issuing an opinion, the examiner should specifically take note of the October 1965 medical history report, wherein the Veteran denied experiencing any knee problems at separation.  The examiner should be informed that in light of the Veteran's discharge examination report, the Board has found the Veteran to be not credible with respect to his assertions of ongoing knee pain and discomfort since service.]  The examiner should provide a rationale upon which his or her opinions are based.  

3.  Then, schedule the Veteran for an appropriate VA examination to determine the effect of his service-connected disabilities [chronic lumbosacral strain with mild spondylosis; cervical spine degenerative arthritis and disc disease; residuals of hairline fracture of the left great toe; tinnitus; right pelvis, residuals of healed fracture; and left upper extremity and chest wall intermittent nerve impingement] on his employability.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.  

The examiner is requested to review all pertinent records associated with the claims file.  The examiner should then comment on the combined effect of the service-connected disabilities on the Veteran's ability to engage in any type of full-time employment, including whether any form of 'light duty' or 'sedentary work' is possible and whether, in the examiner's opinion, these service-connected disabilities are of such severity as to result in an inability to obtain and to maintain employment.  If the examiner finds that the Veteran is employable, he or she should explain how the Veteran is capable of obtaining or maintaining any type of employment in light of any physical restrictions resulting from his service-connected disabilities.

A clear rationale for all opinions, as well as a discussion of the facts and medical principles involved, would be helpful and of considerable assistance to the Board.  

4.  After completing the above, and undertaking any additional evidentiary development deemed necessary, readjudicate the remaining issue on appeal.  If any benefits sought is not granted, the Veteran and his representative should be provided with a supplemental statement of the case.  An appropriate period of time should be allowed for response before the case is returned to the Board.  

No action is required of the Veteran until he is notified; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim.  38 C.F.R. § 3.655 (2012).  The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  

This case must be afforded expeditious treatment.  The law requires that all claims 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).  



______________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs