Citation Nr: 1328126 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 10-00 689 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease of the right knee. 2. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease of the left knee. 3. Entitlement to an initial rating in excess of 10 percent for instability of the right knee. 4. Entitlement to an initial rating in excess of 10 percent for instability of the left knee. 5. Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy. 6. Entitlement to an initial compensable rating for right ear hearing loss. 7. Entitlement to an initial compensable rating for pes planus. 8. Entitlement to an initial compensable rating for tinea pedis. 9. Entitlement to an initial rating in excess of 20 percent for degenerative arthritis of the lumbar spine. 10. Entitlement to higher ratings for irritable bowel syndrome, initially rated as noncompensably disabling prior to May 26, 2011, and as 10 percent disabling thereafter. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran served on active duty from June 1977 to July 2007. These matters come before the Board of Veterans' Appeals on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Due to the Veteran's relocation, jurisdiction over the claims file has been transferred to the RO in Montgomery, Alabama. The decision below addresses the Veteran's claims for higher initial ratings for degenerative joint disease and instability of the knees, right lower extremity radiculopathy, and right ear hearing loss. The remaining claims on appeal are addressed in the remand that follows the decision. FINDINGS OF FACT 1. Degenerative joint disease of the right knee has been manifested by subjective complaints of pain, stiffness, swelling, and limitation of motion to no worse than 0 degrees of extension and 40 degrees of flexion. 2. Degenerative joint disease of the left knee has been manifested by subjective complaints of pain, stiffness, swelling, and limitation of motion to no worse than 0 degrees of extension and 38 degrees of flexion. 3. Instability of the right knee is no more than slight. 4. Instability of the left knee is no more than slight. 5. Right lower extremity radiculopathy results in no more than moderate incomplete paralysis of the sciatic nerve. 6. Right ear hearing loss has been manifested by hearing impairment corresponding to auditory acuity no worse than Level III in the right ear. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for degenerative joint disease of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5260, 5261 (2012). 2. The criteria for an initial disability rating in excess of 10 percent for degenerative joint disease of the left knee are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5260, 5261 (2012). 3. The criteria for an initial disability rating in excess of 10 percent for instability of the right knee are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2012). 4. The criteria for an initial disability rating in excess of 10 percent for instability of the left knee are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2012). 5. The criteria for an initial rating in excess of 20 percent for right lower extremity radiculopathy are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2012). 6. The criteria for an initial compensable disability rating for right ear hearing loss are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In June 2007, prior to the issuance of the rating decision on appeal, the Veteran was issued VCAA notice pertaining to his underlying service connection claims. Since the appellate issues in this case (entitlement to assignment of higher initial ratings) is a downstream issue from that of service connection (for which the June 2007 VCAA letter was duly sent), another VCAA notice was not required. VAOPGCPREC 8- 2003 (Dec. 22, 2003). In any event, in June 2007, notice was issued to the Veteran pertaining to the types of evidence necessary to establish a disability rating and effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The letter notified the Veteran of what information and evidence is needed to substantiate his claims, as well as what information and evidence must be submitted by the claimant, what information and evidence will be obtained by VA, and the types of evidence necessary to establish a disability rating and effective date. Id.; but see VA O.G.C. Prec. Op. No. 1-2004 (Feb. 24, 2004). The contents of this notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of any notice. 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 Board also finds that VA has complied with all assistance provisions of VCAA. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The evidence of record contains the Veteran's service treatment records and lay statements of the Veteran, as well as post-service treatment from both private and VA treatment providers. The evidence of record contains reports of examinations requested by VA performed in July 2007 and April 2012. Such examination reports, when taken together, are thorough and contain sufficient information to adjudicate the issues decided herein. McLendon v. Nicholson, 20 Vet. App. 79 (2006). For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issues decided herein. Criteria & Analysis The Veteran contends that his degenerative joint disease and instability of the knees is more disabling than reflected by the 10 percent disability ratings initially assigned. In addition, the Veteran contends that his right lower extremity radiculopathy is more disabling than reflected by the 10 percent rating initially assigned and that his right ear hearing loss is more disabling than reflected by the noncompensable rating initially assigned. Relevant evidence of record consists of VA examinations conducted in July 2007 and April 2012, as well as records of the Veteran's ongoing treatment with both private and VA treatment providers. At the July 2007 VA examination, the Veteran complained of pain in his knees that had grown increasingly worse over the previous several years and that flared up with increased activity. He complained of swelling and stiffness in his knees as well. He stated that he could walk for a hundred yards or stand for only four to five minutes before needing to rest. Physical examination found guarding and tenderness to palpation bilaterally, but no instability in either knee was found on testing. The Veteran's range of motion bilaterally was flexion to 120 degrees, with pain beginning at 70 degrees, and extension to 0 degrees without pain. No additional limitations were noted on repetitive motion. The examiner diagnosed the Veteran with degenerative joint disease of the knees bilaterally. The Veteran also complained at the July 2007 examination of experiencing pain radiating into his legs from his low back. Neurological evaluation revealed normal sensation to light touch, normal reflexes, and normal motor strength throughout the lower extremities. Report of the April 2012 VA examination noted the Veteran's complaints of swelling and pain in his knees that had continued to worsen. He reported that he used knee braces regularly. Range of motion of the right knee was flexion to 120 degrees, with pain beginning at 90 degrees, and extension to 0 degrees without pain. Range of motion of the left knee was flexion to 110 degrees, with pain beginning at 90 degrees, and extension to 0 degrees without pain. No additional limitation was noted on repetitive motion. Physical examination found pain to palpation and some decreased muscle strength on the left. Mild instability of 1+ was noted to testing bilaterally. The examiner noted that the Veteran was unemployed secondary to pain in his knees and back. The diagnosis was degenerative joint disease in the knees bilaterally. Regarding the Veteran's right leg radiculopathy, the VA examiner found the Veteran to have decreased reflexes on the right, as well as decreased sensation in the right lower leg, ankle, and foot. Straight leg raising was positive on the right, and the Veteran reported moderate pain, paresthesias, and numbness on the right. The examiner diagnosed the Veteran with right lower extremity radiculopathy that was moderate in severity. Records of the Veteran's ongoing treatment reflect that he has consistently sought treatment for his knee and right leg problems in the years since his claims were filed. Treatment records document that the Veteran complained of pain in his knees at an April 2008 treatment visit, at which time he was diagnosed with osteoarthritis of the knees bilaterally. At that time, the treatment provider noted pain on motion and tenderness to palpation of the knees bilaterally, although no instability was noted, and the knees demonstrated "normal movement" bilaterally. Treatment with VA providers dated in August 2008 reflects that the Veteran complained of pain in his knees and right lower extremity. Physical examination at the time found the Veteran to have range of motion of his right knee from 0 to 93 degrees and from 0 to 92 degrees on the left. He was diagnosed with radiculitis of the right leg at that time as well. A treatment note from a March 2010 visit reflects that the Veteran underwent physical therapy due to his complaints of knee pain that limited his mobility. At that time, the Veteran was found to have range of motion of his right knee from 0 to 40 degrees and from 0 to 38 degrees on the left. The Veteran also sought private treatment for his knee complaints in March 2012; at that time, he reported constant pain and instability in the knees bilaterally. Physical examination at that time revealed tenderness to palpation but no instability. The examiner attempted range-of-motion testing, but the Veteran would "not allow" the physician to flex his knees past 40 degrees. He was diagnosed with bilateral knee pain. Similarly, at private treatment visits in March 2012, the Veteran complained of experiencing worsening pain in his right leg. He was diagnosed at the time with right radiculopathy. Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern, and VA must address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, when evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In VA Fast Letter 06-25 (November 29, 2006), VA's Compensation & Pension Service noted that to properly evaluate any functional loss due to pain, examiners, at the very least, should undertake repetitive testing (to include at least three repetitions) of the joint's range of motion, if feasible. It was determined that such testing should yield sufficient information on any functional loss due to an orthopedic disability. Additionally, under VAOPGCPREC 9-2004 (September 17, 2004), separate ratings under Diagnostic Code 5260 and Diagnostic Code 5261 may be assigned for limitation of flexion and limitation of extension of a single knee joint. Regarding the Veteran's right and left knee disabilities, under rating criteria pertaining to limitation of motion of the knee, a 10 percent disability rating is warranted if flexion is limited to 45 degrees, a 20 percent disability rating if flexion is limited to 30 degrees, and a 30 percent disability rating if flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension under Diagnostic Code 5261 is rated as 10 percent disabling if extension is limited to 10 degrees, 20 percent disabling if extension is limited to 15 degrees, 30 percent disabling if extension is limited to 20 degrees, 40 percent disabling if extension is limited to 30 degrees, and 50 percent disabling if extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Here, the medical evidence reflects that the Veteran has complained of pain, stiffness, and swelling in the knees, which problems are exacerbated by prolonged activity. The VA examination reports reflect the examiners' consideration of the Veteran's reported history of pain, swelling, and stiffness. The Board notes, however, that the July 2007 VA examiner noted that the Veteran's range of motion of the knees bilaterally was flexion to 70 degrees without pain and extension to 0 degrees without pain; the April 2012 examination similarly found bilateral range of motion of flexion to 90 degrees without pain and extension to 0 degrees without pain. At worst, the Veteran's range of motion in the knees has been from 0 to 40 degrees on the right and from 0 to 38 degrees on the left, as recorded at his March 2010 VA physical therapy evaluation. No subluxation or dislocation has been noted in either knee at any examination. Upon consideration of the relevant medical evidence, the Board does not find that the clinical evidence supports a disability rating higher than 10 percent for degenerative joint disease for the right or left knee. Specifically, the Board finds that the clinical evidence does not suggest, even when functional loss due to pain is considered, that the Veteran's right or left knee degenerative joint disease has been so disabling as to approximate the level of impairment required for the assignment of a rating higher than the 10 percent initially assigned for each knee. In reaching this decision, the Board observes that range-of-motion testing shows that the Veteran's flexion levels have been to no worse than 40 degrees on the right and 38 degrees on the left, even when pain on motion is taken into consideration; this level of disability warrants no rating higher than the 10 percent initially assigned for each knee under Diagnostic Code 5260, governing limitation of flexion. At no time during the appeal period has the Veteran's flexion of either been shown to have been limited to 30 degrees to warrant a 20 percent rating under Diagnostic Code 5260. Further, as noted above, at the July 2007 and April 2012VA examinations, as well as at multiple VA and private treatment visits, the Veteran has consistently demonstrated full extension to 0 degrees without pain, which does not approximate the compensable level for limitation of extension of the knee under the rating criteria. See 38 C.F.R. § 4.71a, Diagnostic Code 5261. Thus, no separate rating for limitation of extension of either knee is warranted at any time during the appeal period. Id. Although the RO has cited Diagnostic Code 5003 in awarding the Veteran 10 percent ratings based on his degenerative joint disease in the right and left knees, the Board notes that Diagnostic Code 5003, governing degenerative arthritis, is for application only in the absence of limitation of motion compensable under Diagnostic Codes 5260 or 5261, governing limitation of flexion or extension of the knee. Because the Veteran is being compensated for limitation of flexion of the knees under Diagnostic Code 5260 based on arthritis, as discussed above, the Board thus finds that separate ratings under Diagnostic Code 5003 are not appropriate. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). As the Veteran's symptoms of pain and limitation of motion of the knees are evaluated as part of the 10 percent ratings assigned for each knee, discussed above, to also evaluate the same symptoms under Diagnostic Code 5003 would be pyramiding, which is prohibited by 38 C.F.R. § 4.14 (2012). See id. Consequently, no separate rating for arthritis under Diagnostic Code 5003 may be awarded. In its November 2012 rating decision, the RO granted separate 10 percent ratings for instability of each knee. In doing so, the RO evaluated the Veteran's instability of the knees under Diagnostic Code 5257, relating to evaluation of recurrent subluxation and lateral instability of the knee. 38 C.F.R. § 4.71a. The Board will thus consider the Veteran's service-connected laxity of the knees under Diagnostic Code 5257, which provides that a 10 percent rating is warranted for slight impairment, a 20 percent rating is warranted for moderate impairment, and a 30 percent rating is warranted for severe impairment. Upon review of the relevant medical evidence, the Board finds that higher ratings are not warranted for the Veteran's service-connected instability of the knees. In that connection, the Board notes that Diagnostic Code 5257 specifically provides that a 10 percent rating is for application for cases where the instability is found to be slight. In this case, the April 2012 VA examiner found that the instability of the Veteran's knees was slight on physical examination, with each knee rating a 1+ out of a possible 3+ on each stability test. The Board finds that these results, as the lowest positive score on the instability tests, amount to no more than slight instability of each knee. Therefore, the Board does not find that a rating higher than 10 percent is warranted on account of instability. In so finding, the Board acknowledges that it is established that Diagnostic Code 5257 relates to lateral instability and subluxation only and may not be used to evaluate other symptoms, such as pain or limited motion, which are contemplated by other criteria that have been used to assign a separate rating. See VAOPGCPREC 23-97 (July 1, 1997) and VAOPGCPREC 9-98 (Aug. 14, 1998). General Counsel precedent opinions provide guidance on when separate ratings for knee disability may be assigned under the limitation of motion codes in addition to ratings under Diagnostic Code 5257 for subluxation or instability, suggesting that separate compensable ratings may be assigned when limitation of knee motion is compensable or when there is radiological evidence of arthritis together with a finding of painful motion. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). As the Veteran's symptoms of pain, stiffness, and swelling are evaluated as part of his service-connected degenerative joint disease of the knees, discussed above, to evaluate the same symptoms under Diagnostic Code 5257 would be pyramiding, which is prohibited by 38 C.F.R. § 4.14 (2012). See id. Consequently, because the 10 percent ratings awarded by the RO are predicated on the specific findings of slight instability in the Veteran's knees made by the VA examiner at the April 2012 examination, there is no basis for awarding a higher schedular rating for this disability at any time during the appellate period. (Such a problem was not demonstrated objectively at earlier examinations.) As for the Veteran's right lower extremity radiculopathy, evaluations are assigned based on whether the paralysis of a particular nerve is complete or incomplete. Here, the Veteran has been evaluated for right lower extremity radiculopathy under Diagnostic Code 8520, governing paralysis of the sciatic nerve. 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3 (2012). Under Diagnostic Code 8520 for paralysis of the sciatic nerve, a 20 percent rating is warranted for moderate incomplete paralysis; a 40 percent rating is warranted for moderately severe incomplete paralysis; a 60 percent rating is warranted for severe incomplete paralysis, with marked muscular atrophy; and an 80 percent rating is warranted for complete paralysis. Complete paralysis consists of the foot dangling and dropping, with no active movement possible of the muscles below the knee and flexion of the knee weakened or lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Upon review of the evidence, the Board finds that the Veteran's service-connected right lower extremity radiculopathy has resulted in disability approximating no worse than moderate incomplete paralysis of the sciatic nerve. Because the Veteran is already receiving a 20 percent rating for right lower extremity radiculopathy, which rating contemplates moderate impairment for the disability, a higher rating is not warranted. In that connection, the Board notes that there is no evidence that the Veteran experiences moderately severe incomplete paralysis of the right lower extremity. At the Veteran's April 2012 VA examination, he specifically reported that his symptoms of radiculopathy-pain, paresthesias, and numbness in the right lower extremity-were "moderate" in severity. The VA examiner specifically found the Veteran's right lower extremity radiculopathy to be moderate in nature. Otherwise, private and VA treatment records confirm that the Veteran has complained of pain in the extremity on multiple occasions, but no private or VA physician has addressed the level of severity of the radiculopathy. The Board therefore concludes that this disability is tantamount to moderate incomplete paralysis of the sciatic nerve, warranting no more than the 20 percent disability rating initially assigned under Diagnostic Code 8520. Regarding the Veteran's right ear hearing loss, he was provided VA examination in July 2007 and April 2012. At his July 2007 VA examination, the Veteran complained that he had difficulty hearing speech on television and over the phone. Results from the July 2007 audiogram reflect that puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 30 45 50 50 Puretone averages were 43.75 decibels for the right ear. Speech audiometry revealed speech recognition ability of 76 percent in the right ear, using Maryland CNC tests. At that examination, the Veteran complained of having trouble hearing speech on the television and over the phone. Based on those results with the utilization of Table VI, the Veteran had level III hearing impairment in the right ear. Applying the results to Table VII, a noncompensable disability rating is warranted for right ear hearing loss based on the July 2007 VA examination. See 38 C.F.R. § 4.85 (Diagnostic Code 6100). (The Veteran's left ear hearing impairment is presumed to be Level I for the sole purpose of determining the percentage evaluation from Table VII, as that ear is not service connected. See 38 C.F.R. § 4.85(f); 38 C.F.R. § 3.383 (2012). A non-service-connected ear may be treated as service connected for rating purposes, but only when hearing impairment in the service-connected ear is compensable to a degree of 10 percent or more and hearing impairment in the non-service-connected ear meets the provisions of 38 C.F.R. § 3.385. Those criteria are not met here.) Results from the April 2012 audiogram reflect that puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 50 55 60 Puretone averages were 48.75 decibels for the right ear. Speech audiometry revealed speech recognition ability of 76 percent in the right ear, using Maryland CNC tests. When asked if his right ear hearing loss impacted his ability to conduct activities of daily living, the Veteran responded that he had trouble understanding speech over the phone and required a telephone headset while at work. Applying the results of the Veteran's April 2012 VA audiogram reveals no worse than Level III hearing acuity in the right ear under 38 C.F.R. § 4.85. Applying the results to Table VII, a noncompensable disability rating is warranted for right ear hearing loss based on the April 2012 VA examination. The Veteran's service-connected right ear hearing loss has been evaluated as noncompensably disabling under Diagnostic Code 6100 for hearing loss. The assigned evaluation for hearing loss is determined by mechanically applying the rating criteria to certified test results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Under Diagnostic Code 6100, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examination. Evaluations of hearing impairment range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000; 2,000; 3,000; and 4,000 Hertz (cycles per second). To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. As set forth in the regulations, Tables VI, VIa, and VII are used to calculate the rating to be assigned. See 38 C.F.R. § 4.85, Diagnostic Code 6100. Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. Alternatively, VA regulations provide that in cases of exceptional hearing loss, when the pure tone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 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. 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) further provide that, when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever would result in the higher numeral. However, the Veteran's test results do not demonstrate either (1) a pure tone threshold of 55 decibels or more in all four frequencies in the right ear, or (2) a pure tone threshold of 70 decibels or more at 2,000 Hertz in the right ear. 38 C.F.R. § 4.86. Therefore, the Veteran is not entitled to consideration for exceptional patterns of hearing impairment in his right ear. Applying the results of the Veteran's July 2007 and April 2012 VA audiograms reveals no worse than Level III hearing acuity in the right ear. Application of the above-noted findings to Table VII results in a noncompensable disability rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. Thus, the VA examination reports do not support the assignment of an initial rating in excess of what the RO has already awarded-a noncompensable rating. The Board in no way discounts the difficulties that the Veteran experiences as a result of his right ear hearing loss. However, it must be emphasized, as previously noted, that the disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Hence, the Board must base its determination on the results of the pertinent July 2007 and April 2012 audiology studies of record. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). In other words, the Board is bound by law to apply VA's rating schedule based on the Veteran's audiometry results. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Under these circumstances, the Board finds that for the entirety of the appeal period, the record presents no basis for assignment of an initial compensable disability rating for the Veteran's service-connected right ear hearing loss. His hearing acuity has been no worse than Level III in the right ear, which equates to a noncompensable disability rating under Table VII. The Board has considered the Veteran's and his representative's contentions with regard to his claims for higher ratings for his service-connected knee, right lower extremity, and hearing loss disabilities. Although the Board does not doubt the sincerity of the Veteran's belief that his disabilities are more severely disabling than reflected in the current ratings, as a lay person without the appropriate medical training or expertise, he simply is not competent to provide a probative opinion on a medical matter, such as the severity of a current disability as evaluated in the context of the rating criteria. See Bostain v. West, 11 Vet. App. 124, 127 (1998). The above determination is based upon consideration of applicable rating provisions. For all the foregoing reasons, the Board finds that the claim for initial ratings in excess of 10 percent for the Veteran's service-connected degenerative joint disease of the right and left knees must be denied. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 34.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5260, 5261. The Board further finds that the claim for initial ratings in excess of 10 percent for the Veteran's service-connected instability of the right and left knees must be denied. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 34.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. The Board also finds that the Veteran's claim for an initial rating in excess of 20 percent for right lower extremity radiculopathy must be denied. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8520. Further, the Board finds that the claim for an initial compensable disability rating for service-connected right ear hearing loss must be denied. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. This is so for the entirety of the appeal period. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for higher ratings, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The above determinations are based on consideration of the applicable provisions of VA's rating schedule. In particular, the Board notes that the July 2007 and April 2012 VA audiological examination reports describe the effects of the Veteran's hearing impairment on his daily life. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). In particular, the Board notes that the Veteran reported at those examinations that he experienced problems hearing voices on television and over the phone and used a telephone headset while at work. The Board finds that at no time have the disabilities under consideration been shown to be so exceptional or unusual as to warrant the referral for consideration of any higher ratings on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). Here, there is an absence of evidence of marked interference with employment (i.e., beyond that contemplated in the assigned evaluation), frequent periods of hospitalization, or evidence that the Veteran's service-connected knee, right lower extremity, or hearing loss disability, without consideration of other disabilities, has rendered impractical the application of the regular schedular standards. Furthermore, his symptoms are all specifically contemplated by the criteria discussed above. Thus, the criteria for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). It bears emphasis that the schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. Generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2012). Thus, based on the record before it, the Board does not find that the medical evidence demonstrates any unusual disability with respect to the claims that is not contemplated by the rating schedule. The very symptoms the Veteran experiences are all addressed by the rating schedule. Thun v. Peake, 22 Vet. App. 111 (2008). As a result, the Board concludes that a remand for referral of the rating issue to the VA Central Office for consideration of extra-schedular evaluation is not warranted. ORDER Entitlement to an initial rating in excess of 10 percent for degenerative joint disease of the right knee is denied. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease of the left knee is denied. Entitlement to an initial rating in excess of 10 percent for instability of the right knee is denied. Entitlement to an initial rating in excess of 10 percent for instability of the left knee is denied. Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy is denied. Entitlement to an initial compensable rating for right ear hearing loss is denied. REMAND In January 2012, the Veteran underwent VA examination pertaining to his service-connected irritable bowel syndrome; at that time, he was noted to experience occasional episodes of bowel disturbance with abdominal distress. However, a letter from a private physician received in January 2013 indicates that the Veteran has been treated for "moderate to severe frequent episodes of bowel disturbance with abdominal cramping and pain and recurrent and frequent abdominal distress." These findings suggest that the Veteran's irritable bowel syndrome may have worsened since the January 2012 VA examination. Additionally, the Veteran underwent VA examinations concerning his pes planus, tinea pedis, and lumbar spine in April 2012. In particular, report of the spine examination reflects that the Veteran was diagnosed with degenerative disc disease of the lumbar spine and complained of having missed ten days of work in the past six months. However, the examiner did not address the occurrence of incapacitating episodes secondary to the Veteran's lumbar spine disorder. In addition, statements submitted from the Veteran and his representative indicate that his pes planus, tinea pedis, degenerative arthritis of the lumbar spine, and irritable bowel syndrome have worsened. The Veteran is qualified, as a lay person, to report increasing symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495 (1997). Likewise, where the record does not adequately reveal the current state of the claimant's disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination. See Allday v. Brown, 7 Vet. App. 517, 526 (1995); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (where the appellant complained of increased hearing loss two years after his last audiology examination, VA should have scheduled the appellant for another examination). The Board notes here that the Veteran has claimed that his pes planus, tinea pedis, degenerative arthritis of the lumbar spine, and irritable bowel syndrome have worsened since his last examinations. Thus, in light of the fact that the most recent VA examinations were conducted in 2012, over one year ago, and due to the Veteran's reported increased symptomatology, the Board has determined that the Veteran should be afforded further VA examination to assess the current nature and severity of his pes planus, tinea pedis, degenerative arthritis of the lumbar spine, and irritable bowel syndrome. Under these circumstances, the Veteran must be scheduled to undergo examination at an appropriate VA medical facility. See 38 U.S.C.A. § 5103A. Additionally, while on remand, updated VA treatment records should be obtained from all facilities associated with the VA Medical Center (VAMC) in Birmingham, Alabama-or any other VAMC at which the Veteran reports having received treatment-for the period August 15, 2012, to the present. See Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran should also be requested to complete an appropriate release (VA Form 21-4142) pertaining to any private medical providers who have treated him for his pes planus, tine pedis, degenerative arthritis of the lumbar spine, or irritable bowel syndrome but whose records have not been associated with the claims file. 38 C.F.R. § 3.159(c)(1). In view of the foregoing, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify all private medical providers that have provided treatment for his pes planus, tinea pedis, degenerative arthritis of the lumbar spine, or irritable bowel syndrome and that he complete an appropriate release (VA Form 21-4142) pertaining to all identified medical providers whose records are not currently associated with the claims file. Request the entirety of the Veteran's treatment records from the identified medical providers. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Obtain the Veteran's updated treatment records from all facilities associated with the Birmingham VAMC, or any other VAMC at which the Veteran has received treatment, from August 15, 2012. 3. After all outstanding treatment records have been associated with the claims file, the Veteran must be scheduled for VA examination to determine the current severity of his pes planus, tinea pedis, degenerative arthritis of the lumbar spine, and irritable bowel syndrome. He must be notified that failure to report to any scheduled examination, without good cause, could result in a denial of his claims. See 38 C.F.R. § 3.655(b) (2012). The claims folder must be made available to the examiner(s) and reviewed in conjunction with each examination. A complete rationale for any conclusions reached should be included. Pes planus-Any and all studies, tests, and evaluations deemed necessary by the examiner must be performed. The examiner must review all pertinent records associated with the claims file and comment on the current severity of the Veteran's service-connected pes planus. The examiner must address all signs and symptoms necessary for rating the Veteran's service-connected foot disability under the applicable rating criteria. A complete rationale must be given for all opinions and conclusions expressed. Tinea pedis-Any and all studies, tests, and evaluations deemed necessary by the examiner must be performed. The examiner must review all pertinent records associated with the claims file and comment on the current severity of the Veteran's service-connected tinea pedis. The examiner must address all signs and symptoms necessary for rating the Veteran's service-connected skin disability under the applicable rating criteria. A complete rationale must be given for all opinions and conclusions expressed. Lumbar spine-The examiner must identify all orthopedic pathology found to be present. The examiner must conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and must describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, the examiner must express any functional loss in terms of additional degrees of limited motion of the Veteran's thoracolumbar spine. The examiner must also discuss whether the back disability has been productive of any incapacitating episodes, which are defined as periods of acute signs and symptoms that require bed rest prescribed by a physician or treatment by a physician, and if so, the frequency and duration of those episodes. Any opinion offered must include an explanation of supporting comprehensive rationale based on sound medical principles and facts. Irritable bowel syndrome-Any and all studies, tests, and evaluations deemed necessary by the examiner must be performed. The examiner must review all pertinent records associated with the claims file and comment on the current severity of the Veteran's service-connected irritable bowel syndrome. The examiner must address all signs and symptoms necessary for rating the Veteran's service-connected gastrointestinal disability under the applicable rating criteria. A complete rationale must be given for all opinions and conclusions expressed. 4. After completion of the above, review the expanded record and determine if initial increased ratings are warranted for pes planus, tinea pedis, degenerative arthritis of the lumbar spine, or irritable bowel syndrome. If any benefit sought is not granted in full, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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 claims. 38 C.F.R. § 3.655 (2012). The Veteran has the right to submit additional evidence and argument on any matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs