Citation Nr: 1326323 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 07-21 766 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an initial disability evaluation higher than 20 percent for degenerative disc disease of the cervical spine (cervical spine disability). 2. Entitlement to a disability evaluation higher than 10 percent for degenerative arthritis, L4, with limited motion of the lumbar spine (lumbar spine disability). 3. Entitlement to a disability evaluation higher than 10 percent for status post subacromial compression of the left shoulder (left shoulder disability). 4. Entitlement to a compensable disability evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. J. Vecchiollo INTRODUCTION The Veteran had active service from September 1970 to July 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). In April 2011 the Board remanded the issues of entitlement to a disability evaluations higher than 20 percent for degenerative disc disease of the cervical spine, higher than 10 percent for status post subacromial compression of the left shoulder, higher than 10 percent for degenerative arthritis, L4, with limited motion of the lumbar spine; and entitlement to a compensable disability evaluation for bilateral hearing loss for further development and consideration. A November 2011 rating decision granted a separate evaluation for left upper extremity radiculopathy due to the service-connected cervical spine disability, and assigned a 20 percent rating; and granted a separate evaluation for left lower extremity radiculopathy due to the lumbar spine disability, and assigned a 10 percent rating. The Veteran did not appeal for higher ratings for these disabilities. In this case, the Veteran filed a claim for entitlement to a total disability rating due to individual unemployability (TDIU), for which he completed a VA Form 21-8940, in June 2006. The United States Court of Appeals for Veterans Claims (Court) has clarified that a claim for TDIU exists as part of a claim for an increase (whether in an original claim or as part of a claim for increased rating). Rice v. Shinseki, 22 Vet. App. 447 (2009). In Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011), however, the Court distinguished the instant case from Rice and recognized VA can specifically separate the adjudication of the schedular disability rating from the adjudication of entitlement to TDIU. The Court in Locklear held that "[b]ifurcation of a claim generally is within the Secretary's discretion." Id. Here, the record reflects that during the course of the current appeal, entitlement to TDIU was denied in an October 2007 rating decision which considered the finding of the July 2007 VA medical examiner. The Veteran did not file a Notice of Disagreement as to that aspect of his claim for an increased rating. Given the foregoing, the Board concludes that the TDIU rating claim was separately adjudicated and not perfected for appellate review. Accordingly, the Board does not have jurisdiction over the claim and need not refer or remand the matter. FINDINGS OF FACT 1. Resolving doubt in favor of the Veteran, his cervical spine disability, has been manifested by a disability picture approximating forward cervical flexion to 15 degrees; the preponderance of the evidence shows the Veteran's cervical spine is not ankylosed. 2. The preponderance of the evidence shows the Veteran's low back disability is manifested by forward flexion of the thoracolumbar spine greater than 60 degrees and combined range of motion greater than 120 degrees, without muscle spasm and guarding severe enough to result in abnormal gait or abnormal spinal contour and without qualifying incapacitating episodes due to intervertebral disc syndrome. 3. Resolving doubt in favor of the Veteran, his left shoulder disability, which is the minor side, has been manifested by a disability picture approximating limitation of motion of the arm at the shoulder level; the preponderance of the evidence shows the Veteran's left shoulder disability does not approximate arm limitation midway between side and shoulder level, or limitation of motion to 25 degrees from side. 4. The Veteran's hearing loss disability has been manifested, at worst, by a Level VI hearing impairment in the right ear and a Level III hearing impairment in the left ear. CONCLUSIONS OF LAW 1. The criteria for a 30 percent for a cervical spine disability have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a including Diagnostic Codes 5242, 5343 (2012). 2. The criteria for a rating higher than 10 percent for the lumbosacral spine disability are not met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5242, 5243 (2012). 3. The criteria for a 20 percent rating for left shoulder disability have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.69, 4.71a, Diagnostic Codes 5200-5203 (2012). 4. The criteria for a compensable rating for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 3.385, 4.85, 4.86, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice should be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letter dated in July and September 2004. However, the RO did not provide him with complete notice until July 2006, subsequent to the initial adjudication. While the notice was not provided prior to the initial adjudication, he has had the opportunity to submit additional argument and evidence and meaningfully participate in the adjudication process. The claim was readjudicated in a May 2007 statement of the case, following the provision of notice. The appellant has not alleged any prejudice as a result of the untimely notification, nor has any been shown. The notice substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. VA has obtained service treatment records, assisted the appellant in obtaining evidence, afforded the appellant physical examinations, obtained medical opinions as to the etiology and severity of disabilities, and afforded the appellant the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file or with the Veteran's electronic Virtual VA folder; and the appellant has not contended otherwise. Further, the Board remanded this claim in April 2011 for additional VA examinations which were obtained. The Board therefore is satisfied there was compliance with this remand directive. See Stegall v. West, 11 Vet. App. 268 (1998). VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. II. Analysis Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. In any increased rating claim, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report the nature and severity of his symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076 ; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. A. Musculoskeletal Disabilities When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40 , 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The provisions of 38 C.F.R. § 4.59 cited above are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). 1. Cervical Spine Disability The Veteran's service-connected cervical spine disability is characterized as degenerative disc disease, and is evaluated under DC 5243 (intervertebral disc syndrome (IVDS). In addition, the disability can also be rated under the General Rating Formula for Diseases and Injuries of the Spine. Pertinent to the cervical spine, the General Rating Formula assigns a 20 percent rating for forward flexion greater than 15 degrees but not greater than 30 degrees; or, combined ROM of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of body height. A 30 percent disability rating is assigned for forward flexion of the cervical spine 15 degrees or less, or for favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. The Notes following the General Rating Formula provide further guidance in rating diseases or injuries of the spine. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. 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. See also Plate V, 38 C.F.R. § 4.71a. Note (2), which provides that 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. The normal combined range of motion of the cervical spine is 340 degrees. See also Plate V, 38 C.F.R. § 4.71a. Note (3) provides that, 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) provides that the rater is to round each range of motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which 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) provides that disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a. The Formula for Rating IVDS Based on Incapacitating Episodes provides a 10 percent disability rating for 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 assigned for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent disability rating is assigned for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent disability rating is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2) provides that, if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. The Veteran's treatment records show that he experienced pain radiating into the upper extremities associated with his cervical spine disability and, as a result, underwent a left C6-7 anterior cervical discectomy and fusion and right iliac crest bone graft harvest, at a private surgery center on April 1, 2004. The pre-operative and post-operative diagnoses noted on the April 2004 operative report were left C6-7 radiculopathy with herniated nucleus pulposus and spondylosis. Nearly one month later, on April 27, 2004, the Veteran's physician, Dr. J.V., wrote that the Veteran was allowed to return to transitional work as a waste water technician on April 27, 2004, with restrictions. Dr. J.V. wrote, on a form to be provided to the Veteran's employer, that he was restricted from lifting 25 pounds, reaching overhead, and reaching above the shoulders at that time. On June 11, 2004, the Veteran presented for a post-operative follow-up appointment and reported no neck pain and no arm pain. He reported that he had been able to do just about everything he wanted to do, including an extensive amount of fishing. He also reported that he had been unable to return to work with the restrictions outlined, so he had been out of work from April until that day. After examination of the Veteran, Dr. J.V. wrote that the Veteran was able to return to work full-time without restrictions, and that he had given him a release toward that end. The Veteran was granted entitlement to a temporary total rating based on surgery requiring a period of convalescence from May 28, 2004, to June 11, 2004. On VA examination in October 2004, the range of motion of the cervical spine was 0 to 25 degrees flexion, reduced to 20 with increasing pain after repetitive movement, 0 to 15 degrees extension, reduced to 5 degrees with repetitive movement; 0 to 10 degrees lateral bending bilaterally, reduced to 5 degrees with repetitive movement; and 0 to 20 degrees rotation bilaterally, with reduction during repetitive movement. On July 2007 VA examination, the range of motion of the cervical spine was 0 to 30 degrees flexion, with pain at 30 degrees; 0 to 10 degrees extension, with pain at 10 degrees; 0 to 20 degrees lateral bending bilaterally, with pain at 20 degrees; and 0 to 50 degrees rotation bilaterally, with pain at 50 degrees. The Veteran's treatment records show that he C5-C6, C6-C7 cervical discectomy and fusion on June 28, 2010. On August 2011 VA examination, the range of motion of the cervical spine was flexion 45 degrees, extension 40 degrees, left lateral flexion, 15 degrees, right lateral flexion 10 degrees, left rotation 50 degrees, and right rotation 40 degrees. The examiner stated that there was pain throughout the movements. Following repetitive movement, there was a loss of 10 degrees flexion, and a gain of 5 degrees in extension, right left flexion, and bilateral rotation. Under the criteria of the General Rating Formula, a rating higher than 20 percent for the cervical spine requires favorable ankylosis or forward flexion to 15 degrees or less. The Board finds that the these clinical finding, in conjunction with the Veteran's complaints of severe pain on motion, combined with two surgeries being performed during the appeal period more nearly approximates limitation of motion cervical spine to 15 degrees to warrant a 30 percent rating. See 38 C.F.R. § 4.71a, Plate I. In this case medical evidence disproves any ankylosis, and the Veteran's measured forward flexion has been at worst to 20 degrees after repetitive movement in October 2004. There is accordingly no basis on which the Board can conclude the disability picture from his cervical spine disability more closely approximates that contemplated for the higher 40 percent rating. Thus, even affording the Veteran full credibility in reporting his symptoms, his lay reports do not show a disability picture more closely approximating that contemplated by the higher 40 percent rating. Separate compensation is warranted for neurological disabilities secondary to a disability of the spine. Neurological impairment of the left upper extremity is already separately compensated as 20 percent disabling. In a November 2011 addendum to the August 2011 VA examination, the examiner stated that he ruled out right upper extremity radiculopathy. There is no clinical indication of actual neurological impairment of the right upper extremity either by examination or by electrodiagnostic evaluation. There is accordingly no indication in the record of entitlement to additional separate compensation for neurological disability. There is also no indication of any bowel or bladder involvement due to the cervical spine disability. The Board has also considered the surgical scar in the evaluation of the service-connected disability. There is no evidence, however, that the anterior neck scar are painful/tender, unstable, and nonlinear, cover an area of 144 square inches or more, or limit function of the cervical spine in any way. Also, the scar is not deep, or that it also measured at least 6 square inches. As such, a separate, compensable rating for the residual scars is not appropriate. See 38 C.F.R. § 4.118, Diagnostic Codes 7801-05 (2002 and 2012). 2. Lumbar Spine Disability The Veteran's service-connected lumbar spine disability is characterized as degenerative arthritis which is evaluated by C.F.R. § 4.71a, Diagnostic Code (DC) 5242. Pertinent to the lumbosacral spine, the General Rating Formula assigns a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, or for combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. The General Rating Formula assigns a rating of 20 percent for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, combined ROM of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm and guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less or for favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. On VA examination in October 2004, the range of motion of the lumbar spine was 0 to 75 degrees flexion, with no reduction during repetitive movement; 0 to 20 degrees extension, with no reduction during repetitive movement; 0 to 20 degrees lateral bending bilaterally, reduced to 15 degrees with repetitive movement; and 0 to 25 degrees rotation bilaterally, with no reduction during repetitive movement. On July 2007 VA examination, the range of motion of the lumbar spine was 0 to 70 degrees flexion, with pain at 70 degrees; 0 to 20 degrees extension, with pain at 20 degrees; 0 to 20 degrees lateral bending bilaterally, with pain at 20 degrees; and 0 to 30 degrees rotation bilaterally, with pain at 30 degrees. On August 2011 VA examination, the range of motion of the lumbar spine was 80 degrees flexion, with pain at 80 degrees; 25 degrees extension with pain throughout; 30 degrees lateral bending bilaterally, without lumbar spine pain; 25 degrees left lateral rotation 25 degrees, without pain, and degrees right rotation without pain. Following repetitive movement, there was a loss of 5 degrees of right rotation, and a gain of 5 degrees in flexion and extension. On review of the evidence above, the Board notes at the outset that the Veteran's range of motion is squarely within the General Rating Formula criteria for the currently-assigned 10 percent rating. Even after allowing for addition limitation of function after repetitive motion due to pain, weakness, incoordination, fatigability or lack of endurance, the Veteran's range of motion is significantly better than the threshold for a higher 20 percent rating (forward flexion 30-60 degrees and combined ROM not greater than 120 degrees). The other factors for a 20 percent rating (muscle spasm and guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis) are entirely absent. Accordingly, even considering the DeLuca factors, the criteria for rating higher than 10 percent are not met per the General Rating Formula. Turning to alternative rating for IVDS, and given that VA treatment records document no such prescription, the Board concludes that qualifying incapacitating episodes are not shown. Separate compensation is warranted for neurological disabilities secondary to a disability of the spine. Neurological impairment of the left lower extremity is already separately compensated as 10 percent disabling. There is no clinical indication of actual neurological impairment of the right lower extremity. There is accordingly no indication in the record of entitlement to additional separate compensation for neurological disability. There is also no indication of any bowel or bladder involvement due to the lumbar spine disability. VA must consider all favorable lay evidence of record. 38 U.S.C.A. § 5107(b); Caluza, 7 Vet. App. 498. Accordingly, in addition to the medical evidence above the Board has carefully considered the lay evidence offered by the Veteran in the form of his correspondence to VA and his statements to various medical providers. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). In this case, even affording the Veteran complete competence and credibility in reporting his symptoms, none of his reports show entitlement to a schedular rating higher than the currently-assigned 10 percent. The Veteran's primary complaint is pain, but the current 10 percent rating is the appropriate minimum compensation for painful motion; as explained above, any other schedular criteria for rating higher than 10 percent are not shown by the medical or lay evidence of record. At no time during the pendency of this claim, has the disability been more or less disabling than as currently rated. The preponderance of the evidence is against the claim; there is no doubt to be resolved; and an increased rating is not warranted. 3. Left Shoulder Disability The Veteran, who is right handed, is currently in receipt of a 10 percent disability evaluation for a left (minor) shoulder disability. He contends that he is entitled to a higher initial rating. In service, in May 1993, he underwent a subacromial compression of the left shoulder. There are multiple diagnostic codes that may potentially be employed to evaluate impairment resulting from service-connected shoulder disorders under 38 C.F.R. § 4.71a. These include the following: DC 5200 (for ankylosis of the scapulohumeral articulation); DC 5201 (limitation of motion in the arm); DC 5202 (for rating other impairment of the humerus, involving malunion, recurrent dislocation, fibrous union, non-union, or loss of head); DC 5203 (for rating impairment of the clavicle or scapula). The Veteran is right handed, therefore, his left arm is his minor arm. Specifically under DC 5201, a 20 percent evaluation is assigned for limitation of minor arm motion at shoulder level. When there is limitation of motion midway between the side and shoulder level (between 45 and 90 degrees) a 20 percent rating is again warranted for minor arm limitation of motion. The maximum evaluation for minor arm limitation of motion is 30 percent and is assigned for arm motion limited to 25 degrees from the side. See 38 C.F.R. § 4.71a, DC 5201. In assessing limitation of motion under DC 5201, the criteria for a higher rating may be met by considering limitations of motion in either forward flexion or abduction. See Mariano v. Principi, 17 Vet. App. 305, 317-18 (2003). After reviewing the evidence, the Board finds that a 20 percent rating is warranted for the Veteran's left shoulder disability. On October 2004 VA examination, flexion was 0 to 155 degrees, pain was present throughout, and ROM was reduced to 135 degrees after repetitive movement; abduction was 0 to 160 degrees, with pain starting at 80 degrees, severe pain starting at 120 degrees, and ROM was reduced to 120 degrees after repetitive movement; external rotation from 0 to 80 degrees, and ROM was reduced to 70 degrees after repetitive movement; and internal rotation was 0 to 80 degrees with no change after repetitive movement. On July 2007 VA examination, flexion was 0 to 120 degrees, with pain starting at 120 degrees; abduction was 0 to 120 degrees, with pain starting at 120 degrees; external rotation from 0 to 70 degrees, with pain starting at 70 degrees; and internal rotation was 0 to 80 degrees, with pain starting at 80 degrees. The examiner stated that these measurements were obtained after three repetitions. On August 2011 VA examination, flexion was 0 to 160 degrees, with pain starting at 120 degrees; abduction was 0 to 120 degrees, with pain starting at 85 degrees; external rotation from 0 to 90 degrees, with pain starting at 80 degrees; and internal rotation was 0 to 80 degrees. After repetitive movement, flexion was limited by an additional 5 degrees. The Board finds that the these clinical finding of limitation of both left shoulder flexion and abduction to 120 degrees, in conjunction with the Veteran's complaints of severe pain on motion, more nearly approximates limitation of motion of the left shoulder to shoulder level (90 degrees) to warrant a 20 percent rating. See 38 C.F.R. § 4.71a, Plate I. However, the evidence does not more nearly approximate arm limitation midway between side and shoulder level, or limitation of motion to 25 degrees from side, necessary for rating in excess of 20 percent. The above analysis takes into consideration the Deluca factors, particularly limitation of motion due to pain. Where shown by the evidence, the Veteran's pain does not result in additional functional limitations warranting a schedular disability rating in excess of 20 percent. See Mitchell, 25 Vet. App. at 33, 43. An even higher rating is not warranted on this basis, however, because the Veteran's pain, even when considering his own statements, to result in further functional limitations that more nearly approximate the criteria for a higher 30 percent rating. See Mitchell, 25 Vet. App. at 33, 43. The Board has considered whether any other diagnostic codes could alternately provide even higher ratings. However, as there is no evidence of ankylosis of the scapulohumeral articulation; or other impairment of the humerus, involving malunion, recurrent dislocation, fibrous union, non-union, or loss of head; or impairment of the clavicle or scapula- those Codes are not for application. See 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202, 5203. The Board has also considered the surgical scar in the evaluation of the service-connected disability. There is no evidence, however, that the left shoulder scar is not painful/tender, unstable, and nonlinear, cover an area of 144 square inches or more, or limit function of the cervical spine in any way. Also, the scar is not deep, or that it also measured at least 6 square inches. As such, a separate, compensable rating for the residual scar is not appropriate. See 38 C.F.R. § 4.118, Diagnostic Codes 7801-05 (2002 and 2012). B. Bilateral Hearing Loss Disability ratings for hearing loss disability are derived from mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination. See 38 C.F.R. § 4.85. An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometric test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(b). Table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on puretone threshold average. Table VIa is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85(c). "Puretone threshold average" as used in Tables VI and VIa is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four. This average is used in all cases (including those of § 4.86) to determine a Roman numeral designation from Tables VI and VIa. 38 C.F.R. § 4.85(d). Table VII, "Percentage Evaluations of Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear. The horizontal rows represent the ear having better hearing and the vertical columns represent the ear having the poorer hearing; the percentage evaluation is located at the point where the row and the column intersect. 38 C.F.R. § 4.85(e). Provisions for evaluating exceptional patterns of hearing impairment are as follows. (a) When the puretone thresholds at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. (b) When the puretone thresholds are 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral; the numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. The results of an October 2004 VA audiological evaluation are: HERTZ CNC Level 1000 2000 3000 4000 Avg RIGHT 35 60 65 65 56 96 I LEFT 35 40 60 60 49 96 I The results of a July 2007 VA audiological evaluation are: HERTZ CNC Level 1000 2000 3000 4000 Avg RIGHT 55 65 75 75 68 96 II LEFT 45 40 60 60 51 100 I The results of a August 2011 VA audiological evaluation are: HERTZ CNC Level 1000 2000 3000 4000 Avg RIGHT 55 70 75 80 70 88 VI LEFT 45 45 65 65 55 96 I Applying the values most favorable to the Veteran's claim, i.e., the latest August 2011 VA audiological findings, to Table VI results in a Level VI Roman numeral designation for the right ear and a Level I designation for the left ear. Application of the applicable Roman numeral designations from both Table VI and Table VIa to Table VII results in a noncompensable rating. At no time during the pendency of this claim, has the disability been more or less disabling than as currently rated. The preponderance of the evidence is against the claim; there is no doubt to be resolved; and an increased rating is not warranted. C. Extraschedular Considerations In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's cervical spine disability on appeal (musculoskeletal pain and weakness, impairment of gait, limitation of motion of the joints, and radiculopathy to the right lower extremity). The rating criteria contemplate the Veteran's lumbosacral spine disability on appeal, as the functional impairments he describes (musculoskeletal pain and weakness, impairment of gait, limitation of motion of the joints, and radiculopathy to the right lower extremity). The rating criteria contemplate the Veteran's left shoulder disability on appeal, as the functional impairments he describes (musculoskeletal pain and weakness, and limitation of motion of the joints). The rating criteria contemplate the Veteran's bilateral hearing loss on appeal, as the functional impairments he describes (trouble hearing people, especially his wife and listening to television). The Veteran's symptoms are specifically incorporated in the respective schedular criteria; and are therefore adequate to evaluate the Veteran's disabilities on appeal, and referral for consideration of extraschedular rating is not warranted. ORDER A 30 percent, rating for the service-connected cervical spine disability is granted, subject to the regulations governing monetary awards. An increased rating for the service-connected lumbar spine disability is denied. A 20 percent, rating for the service-connected left shoulder disability is granted, subject to the regulations governing monetary awards. An increased rating for the service-connected bilateral hearing loss is denied. ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs