Citation Nr: 1328902	
Decision Date: 09/10/13    Archive Date: 09/17/13

DOCKET NO.  07-27 934	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUES

1.  Entitlement to an initial disability rating in excess of 10 percent for service-connected dysthymic disorder due to chronic pain as a result of service-connected disabilities prior to July 25, 2008; and in excess of 30 percent from July 25, 2008 to January 1, 2011. 

2.  Entitlement to an initial disability rating in excess of 10 percent for service-connected bursitis, right knee.

3.  Entitlement to an initial disability rating in excess of 10 percent for service-connected bursitis, left knee.

4.  Entitlement to an initial disability rating in excess of 10 percent for service-connected degenerative joint disease, lumbar spine.

5.  Entitlement to an initial disability rating in excess of 10 percent for service-connected sciatica, left lower extremity, prior to May 19, 2011; and in excess of 20 percent thereafter.

6.  Entitlement to an initial disability rating in excess of 10 percent for service-connected sciatica, right lower extremity, prior to May 19, 2011; and in excess of 20 percent thereafter.    

7.  Entitlement to an initial compensable disability rating for service-connected bilateral hearing loss. 

8.  Entitlement to an initial disability rating in excess of 10 percent for service-connected residuals of left inguinal hernia repair.

9.  Entitlement to service connection for residuals, post-operative right inguinal hernia.

10.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).

11.  Entitlement to special monthly compensation at the housebound rate prior to May 19, 2011.  


REPRESENTATION

Appellant represented by:	David L. Hufton, Attorney-at-Law




WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

S. M. Kreitlow


INTRODUCTION

The Veteran had active military service from June 1974 to June 1977 and February 2003 through May 2004.  The Veteran also served in the Army National Guard of West Virginia from 1978 through 2007.  The Veteran died on May [redacted], 2011.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.

In an October 2005 rating decision, the RO granted service connection for bilateral hearing loss evaluated as 0 percent disabling; tinnitus evaluated as 10 percent disabling; left inguinal hernia evaluated as 0 percent disabling; bursitis, right knee, evaluated as 10 percent disabling; bursitis, left knee, evaluated as 10 percent disabling; degenerative joint disease, lumbar spine, evaluated as 10 percent disabling; and dysthymic disorder due to chronic pain evaluated as 10 percent disabling.  The effective date for the grant of service connection for these disabilities was May 21, 2004.  In this same rating decision, the RO also denied service connection for residuals, post operative right inguinal hernia; fracture, right leg with traumatic arthritis and meniscus maceration (claimed as right lower extremity and right knee condition); and posttraumatic stress disorder (PTSD).  In May and July of 2006, the Veteran filed Notices of Disagreement with the initial disability ratings established for his now service-connected bilateral hearing loss; bursitis, right knee; bursitis, left knee; degenerative joint disease, lumbar spine; left inguinal hernia; and dysthymic disorder due to chronic pain.  He also disagreed with the denial of service connection for residuals, post operative right inguinal hernia.  

By rating decision issued in September 2007, the RO granted an increased rating to 10 percent for service-connected left inguinal hernia effective May 21, 2004, the date of the grant of service connection.  Thereafter, the Veteran submitted a Notice of Disagreement continuing his disagreement with that rating, claiming a 30 percent disability rating is appropriate.  A Statement of the Case was issued in April 2008 on all issues appealed, and, later that month, the Veteran perfected his appeal by filing a VA Form 9.

In addition, with regard to the Veteran's claim for a higher initial disability rating for his service-connected dysthymic disorder due to chronic pain, in an October 2009 rating decision, the RO granted an increased rating to 30 percent effective July 25, 2008.  Furthermore, by rating decision issued in March 2012 (subsequent to the Veteran's death), a 100 percent disability rating was awarded retroactively to January 2, 2011.  As the 100 percent rating is the highest provided by the rating schedule, the issue is as listed on the title page and only involves the period of the Veteran's appeal at which his dysthymic disorder was not rated as 100 percent disabling (i.e., prior to January 2, 2011).  

Finally, the Board notes that, in a January 2009 rating decision, the RO granted service connection for sciatica of the bilateral lower extremities evaluated as 10 percent disabling per lower extremity effective July 27, 2006, and the Veteran perfected an appeal in November 2009.  By a March 2012 rating decision, the RO granted increased disability ratings to 20 percent per lower extremity effective May 19, 2011.

The Court of Appeals for Veterans Claims (Court) has held that total disability rating due to individual unemployability (TDIU) is an element of all appeals of an initial rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied, and VA must consider whether the veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU).  Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). 

The evidence of record indicates that, in 2007, the Veteran was discharged from the West Virginia Army National Guard and retired from his position as a federal civilian employee with the West Virginia Army National Guard due to his disabilities.  As the Veteran has appealed the initial ratings of his now service-connected disabilities and is seeking the highest ratings possible, and evidence of unemployability has been submitted, the Board finds that a claim for a TDIU has been raised by the record.  The RO has not, however, adjudicated this claim in the first instance.  As such claim is part of the Veteran's claims for an increased disability ratings for his service-connected disabilities, the appropriate action is for the Board is to remand a claim for a TDIU to the RO for appropriate development and adjudication before it addresses that issue.  Consequently, the Board has included entitlement to a TDIU as an issue on appeal. 

Finally, as previously indicated, the Veteran's original claim included a claim for service connection for PTSD; however, he failed to file a timely substantive appeal as to that issue and it is, therefore, not present before the Board.  The Board notes, however, that in February 2011, the RO sent the Veteran a notice letter on how to reopen a claim for service connection for PTSD indicating it had received his claim.  In January 2011, the Veteran submitted the report of a new private psychological evaluation showing a diagnosis of PTSD, which the Board can only conclude the RO took as an informal claim to reopen the previously final claim for service connection for PTSD.  The RO has not, however, adjudicated in the first instance this claim to reopen for service connection for PTSD.  Consequently, the Board does not have jurisdiction over such claim and must refer it to the RO for appropriate action.  

In a March 2012 rating decision, the RO granted entitlement to special monthly compensation at the housebound rate effective May 19, 2011, on the basis that the Veteran had one disability rated at 100 percent and additional service-connected disabilities with a combined rating of 60 percent.  The Board finds that entitlement to special monthly compensation at the housebound rate is inextricably intertwined with the claim for a TDIU because the outcome of the decision for a TDIU may result in earlier entitlement to special monthly compensation at the housebound rate should the TDIU be based solely on a single service-connected disability.  See Buie v. Shinseki, 24 Vet App 242 (2010) (a TDIU based on one disability satisfies the requirement under 38 U.S.C. § 1114(s) that a claimant have a "service-connected disability rated as total.").  Consequently, the Board finds that this issue in part of the appeal pending before it.
 
The issues of service connection for residuals, post operative right inguinal hernia, entitlement to a TDIU, and entitlement to special monthly compensation at the housebound rate prior to May 19, 2011, are addressed in the REMAND portion of the decision below and are REMANDED to the RO.


FINDINGS OF FACT

1.  The Veteran died on May [redacted], 2011, and the appellant, who is the Veteran's surviving spouse, was substituted as the appellant on the claims pending at his death.

2.  From May 21, 2004 until January 1, 2011, the Veteran's service-connected dysthymic disorder due to chronic pain was productive of no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks although generally functioning satisfactorily with routine behavior, self-care, and conversation normal.

3.  The Veteran's service-connected bursitis of the right knee is not productive of more than painful noncompensable limitation of motion.

4.  The Veteran's service-connected bursitis of the left knee is not productive of more than painful noncompensable limitation of motion.

5.  The Veteran's service-connected degenerative joint disease of the lumbar spine is not productive of forward flexion limited to less than 60 degrees; combined range of motion of less than 120 degrees; or muscles spasms or guarding causing an abnormal gait or abnormal spinal contour.

6.  Prior to May 19, 2011, service-connected sciatica of the left lower extremity was not productive of moderate impairment of the sciatic nerve.

7.  As of May 19, 2011, service-connected sciatica of the left lower extremity was not productive of moderately severe impairment of the sciatic nerve.

8.  Prior to May 19, 2011, service-connected sciatica of the right lower extremity was not productive of moderate impairment of the sciatic nerve.

9.  As of May 19, 2011, service-connected sciatica of the right lower extremity was not productive of moderately severe impairment of the sciatic nerve.

10.  The Veteran's hearing loss in the right ear is productive of a puretone threshold average no higher than 30 with speech recognition ability of 100 percent.

11.  The Veteran's hearing loss in the left ear is productive of a puretone threshold average no higher than 26.25 decibels with speech recognition ability of 98 percent.

12.  The Veteran's service-connected left inguinal hernia is not productive of a large, postoperative, inguinal hernia that is not well supported by truss, not readily reducible, and not inoperable.


CONCLUSIONS OF LAW

1.  The criteria for a disability rating of 30 percent, but no higher, for the appeal period for service-connected dysthymic disorder due to chronic pain are met.  38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9433 (2012).

2.  The criteria for a disability rating in excess of 10 percent for service-connected bursitis, right knee, are not met.  38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59 and 4.71a, Diagnostic Code 5019, 5260, 5261 (2012).

3.  The criteria for a disability rating in excess of 10 percent for service-connected bursitis, left knee, are not met.  38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59 and 4.71a, Diagnostic Code 5019, 5260, 5261 (2012).

4.  The criteria for a disability rating in excess of 10 percent for service-connected degenerative joint disease, lumbar spine, are not met.  38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59 and 4.71a, Diagnostic Code 5242 (2012).

5.  The criteria for a disability rating in excess of 10 percent for service-connected sciatica, left lower extremity, were not met prior to May 19, 2011.  38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7 and 4.124a, Diagnostic Code 8520 (2012).

6.  Since May 19, 2011, the criteria for a disability rating in excess of 20 percent for service-connected sciatica, left lower extremity, have not been met.  38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7 and 4.124a, Diagnostic Code 8520 (2012).

7.  The criteria for a disability rating in excess of 10 percent for service-connected sciatica, right lower extremity, were not met prior to May 19, 2011.  38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7 and 4.124a, Diagnostic Code 8520 (2012).

8.  Since May 19, 2011, the criteria for a disability rating in excess of 20 percent for service-connected sciatica, right lower extremity, have not been met.  38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7 and 4.124a, Diagnostic Code 8520 (2012).

9.  The criteria for a compensable disability rating for service-connected bilateral hearing loss are not met.  38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7 and 4.85, Diagnostic Code 6100 (2012).

10.  The criteria for a disability rating in excess of 10 percent for service-connected left inguinal hernia are not met.  38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7 and 4.114, Diagnostic Code 7338 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Standing

The Veteran initiated his appeals by filing timely VA Form 9s in August 2007, April 2008 and November 2009.  Subsequent thereto, during the pendency of his appeals, the Veteran died on May [redacted], 2011.  In July 2011, the appellant, who is the Veteran's surviving spouse, moved to be substituted for the Veteran in order to continue his appeals.  Although there is nothing in the file to show the RO formally acknowledged and accepted the appellant's request for substitution, any deficiency in notice is waived as the RO continued to process the Veteran's appeals with the appellant as his substitute.  Furthermore, the RO informed the appellant in an April 2013 letter that her claims for Dependency and Indemnity Compensation would be essentially put on hold until the Veteran's appeal is processed to completion.  Consequently, the Board finds that the appellant has successfully been substituted in lieu of the Veteran and has standing to prosecute the Veteran's claims.

II.  Notice and Assistance Requirements

This appeal arises from the Veteran's disagreement with the initial evaluations following the grants of service connection.  Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  No additional discussion of the duty to notify is therefore required. 

VA also has a duty to assist in the development of the claim, which is not abrogated by the granting of service connection.  38 U.S.C.A. § 5103A(b)(1).  All efforts have been made to obtain relevant, identified and available evidence.  The Board notes that the record shows the Veteran was in receipt of disability benefits from the Social Security Administration.  Although the RO did not obtain the Social Security Administration's records relating to his claim for disability benefits, the Board finds that this was not necessary as the Veteran's attorney submitted to VA between March and May of 2009 what appears to be all the medical records submitted to the Social Security Administration in support of his claim.  Thus, further efforts to obtain any Social Security Administration records would only result in obtaining duplicate medical evidence.  

The duty to assist includes providing the Veteran a thorough and contemporaneous examination.  Green v. Derwinski, 1 Vet. App. 121 (1991).  The Veteran was afforded VA examinations in August 2005, July 2008, September 2008 and May 2011.  Since the Veteran is deceased, the Board has no further duty to obtain contemporaneous medical examinations.  The Board finds, however, that no medical opinions based upon the current evidence of record are necessary in order to decide the appealed claims for increased disability ratings.

Thus, the Board finds that VA has satisfied its duties to inform and assist the Veteran/appellant.  Additional efforts to assist or notify would serve no useful purpose.  Therefore, there will be no prejudice as a result of the Board proceeding to the merits of the appealed claims. 

III.  Increased Rating Claims

Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder.  38 U.S.C.A. § 1155.  Separate diagnostic codes identify the various disabilities.  Id.  Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder.  38 C.F.R. §§ 4.1 and 4.2.  

It is also necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the veteran's favor, 38 C.F.R. § 4.3.  If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  

The Veteran's claims for higher evaluations for his now service-connected disabilities were original claims that were placed in appellate status by his disagreement with the initial rating awards.  In these circumstances, separate ratings may be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).

In evaluating musculoskeletal disabilities, the Board must also consider whether a higher disability evaluation is warranted on the basis of functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45; see DeLuca v. Brown, 8 Vet. App. 202 (1995).  Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain.  38 C.F.R. § 4.40.  A part that becomes painful on use must be regarded as seriously disabled.  Id.; see also DeLuca.  As regards the joints, factors to be evaluated include more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement.  38 C.F.R. § 4.45(f).  

Lay testimony is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness.  Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).  Furthermore, lay evidence is considered 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.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

Dysthymic Disorder Due To Chronic Pain

Service connection for a dysthymic disorder due to chronic pain resulting from service-connected disabilities, especially degenerative joint disease of the lumbar spine, was established effective May 21, 2004.  The RO evaluated this disability initially as 10 percent disabling.  Subsequently, in an October 2009 rating decision, the RO granted a 30 percent disability rating effective July 25, 2008.  Thereafter, in a March 2012 rating decision (issued after the Veteran's death), the RO granted a 100 percent disability rating effective January 2, 2011.  As a 100 percent disability rating is the highest evaluation permitted under the rating schedule, the Board need not consider whether an increased rating is warranted since January 2, 2011.  It will, therefore, focus on the period between May 21, 2004, when service connection was established and January 1, 2011, the day before the 100 percent rating was awarded.

The Veteran's service-connected dysthymic disorder due to chronic pain has been evaluated under Diagnostic Code 9433.  The regulations establish a general rating formula for mental disorders.  38 C.F.R. § 4.130.  Ratings are assigned according to the manifestation of particular symptoms.  However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code.  Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV (American Psychiatric Association:  Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)).  Id. at 443. 

The criteria of 10 percent disability rating are:

Occupation and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication.

The criteria of a 30 percent disability rating are:

Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as:  depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).

The criteria of a 50 percent disability rating are:

Occupational and social impairment with reduced reliability and productivity due to such symptoms as:  flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.  

The criteria for a 70 percent rating are:

Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.

And, the criteria for a 100 percent rating are:

Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.

38 C.F.R. § 4.130.

A Global Assessment of Functioning (GAF) score is highly probative as it relates directly to the veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders.  See Massey v. Brown, 
7 Vet. App. 204, 207 (1994).  

In support of his claim for service connection, the Veteran submitted the report of a private psychological evaluation dated in April 2005.  After setting forth the Veteran's history prior to, during and after service, his subjective complaints (including nightmares, flashbacks, intrusive thoughts, hyper-vigilance, decreased activity, avoidance behaviors, sleeplessness, helplessness and excessive alcohol use), and his objective findings on mental status examination, this private psychologist diagnosed the Veteran to have PTSD with depression and major depressive disorder.  The psychologist noted that the Veteran's psychosocial stressors included problems with his primary support group, problems related to his social environment, occupational problems in that he finds it impossible to focus properly on current work tasks and get them done; and other psychosocial and environmental problems (exposure to the disasters of war).  He assigned a current GAF score of 45 with 47 over the past year.  His reasoning for assigning these GAF scores was that the Veteran had serious symptoms including a sense of foreshortened future, no desire for friends, constant sleep difficulties, extreme startle response, extreme withdrawal,  excessive alcohol intake, inability and no desire to trust others except his wife, extreme fatigue, and "no enthusiasm about doin' a damn thing anymore."  In support of his diagnoses, the psychologist submitted two attachments to his report.  Attachment A sets forth how the DSM-IV criteria for PTSD were met, and Attachment B sets forth how the DSM-IV criteria for major depressive disorder were met.  

The Veteran also underwent a VA mental disorders examination in August 2005.  At that time, he complained of symptoms of depression stating "I wish I'd quit hurting."; and "Tired of the military now because they don't know what they're doing."  He also reported having little socialization, just going to work and coming home.  He had a good marriage but was not in contact with his two daughters and had little contact with his siblings.  He did report that, while he was in Iraq, he did not know who to trust and that, he had heard of a terrorist cell in West Virginia of whom he was fearful.  He related that he enjoyed hunting deer, feeding deer in the park, and watching DVD's with his wife at home.  There was a positive history of problematic substance abuse.  Mental status examination was positive for a dysphoric mood.  He had a mild level of depression and frustration as he talked about his chronic pain.  His thought content contained unusual thoughts regarding fear of terrorists in West Virginia.  He had a severe sleep impairment.  He reported he drank 12 beers "for pain and to help get to sleep."  He also reported nightmares three to four times per week of IEDs, Iraqis, and mortar rounds (although no other symptoms of PTSD were noted by the examiner).  The examiner noted that the Veteran had severe alcohol abuse.  His remote memory was mildly impaired.  On the Beck Depression Inventory, the Veteran scored a 13, which was in the mild range.  The examiner diagnosed the Veteran to have alcohol dependence and dysthymic disorder (that he characterized as long lasting mild depression).  He assigned a GAF score of 75 which the examiner stated refers to the effects of the Veteran's depression/dysthymic disorder only.

In February 2008, the Veteran appeared and testified at a hearing held before a Decision Review Officer at the RO.  He did not, however, provide testimony relating to this disability but rather chose instead to rely on a private medical report that he intended to submit within a short time after the hearing.

In July 2008, the Veteran submitted a second private psychological evaluation, the report of which is dated in June 2008.  The psychologist noted the Veteran's pre-service report of being in good health and coming from a family where he was the oldest of five siblings and having a strict father.  She noted the Veteran's military history and his report of having been exposed to stressors that resulted in symptoms of PTSD - an IED was thrown at his convoy in Baghdad, mortar rounds were fired into his camp and his Lieutenant got his unit lost in Baghdad.  On mental status examination, the Veteran was noted to be appropriately dressed and groomed.  He maintained good eye contact.  He was soft spoken.   He presented his thoughts in a coherent and relevant manner.  His train of thought was focused and without disturbances of logic or bizarreness.  He described his mood as "all right," but added that his mood is usually "up and down."  His wife added that "he has mood swings real bad."  The psychologist noted there was little variation in affect during the interview.  

On the Davidson Trauma Scale (DTS), an instrument for measuring the frequency and severity of PTSD symptoms, the Veteran scored a total of 96, which indicated the presence of PTSD symptoms.  On the Anxiety/Worry Scale of the Clinical Assessment of Depression (CAD), the Veteran scored in the range of mild clinical risk.  He endorsed some items that are consistent with symptoms of anxiety.  His mental content consisted of feeling depressed, hopeless, lacking interest and a lack of joy in his life.  During the interview, there were no obvious indications of psychotic distortions, including ideas of reference, hallucinations, faulty perceptions or misinterpretations of consensual reality.  He denied having any suicidal ideation.  On Mini Mental Status Examination (MMSE), he scored in the range of normal cognitive function.  He was alert, responsive and well oriented.  He experienced difficulty with the Recall Task and was only able to recall one of three words.  He had an adequate general fund of knowledge, and his performance on the Digit Span Task was above average.  His performance on the hypothetical judgment questions was fair.  He had some insight into his behavior and could usually comprehend behaviors which would be socially non-acceptable.  

In summarizing her findings, the psychologist stated that there is sufficient evidence to support the diagnoses of PTSD, dysthymia and generalized anxiety disorder.  According to the Veteran, he had had symptoms of depression since 2004.  His PTSD symptoms occurred more than six months after he experienced the traumatic events while serving in Iraq.  She noted that the Veteran is a recipient of the Combat Action Badge for being in hostile fire.  According to the Veteran's wife, he has "road rage."  The Veteran also stated, "I don't take a shower very often and she (his wife) gets on to me.  I hurt."  His pain is his reason for not keeping up with his personal hygiene.  The Veteran has been married twice and for 21 years to his current wife.  He was asked about a support system and responded that his wife is supportive.  He denied having any friends.  He stated that he is not involved in his community, nor does he report a religious or spiritual involvement.  When asked about interests or hobbies, he indicated that he used to enjoy hunting and fishing, however, he stated that he could no longer participate in those activities due to his level of pain.  He stated, "I can do little things around the house."  He said that he does not take pain medication, instead he drinks alcohol daily, approximately 12 beers "to kill the pain."  He reported that he does not feel intoxicated when he drinks.  The psychologist stated that the Veteran obviously uses alcohol as a way to self medicate his physical pain, and most likely to moderate his psychological distress as well.  She assigned a GAF score of 45, which was based on his having no leisure activities, chronic pain and fatigue, and a limited social outlet.  

The Veteran underwent a second VA mental disorders examination in September 2008.  At that time, the Veteran reported he does not take any medicine for psychiatric reasons.  He does, however, drink beer up to 12 beers per day as a self medication to "keep moving."  He emphasized that he does not use the beer to get drunk.  He reported that "I do not trust anyone.  I do not socialize.  I just ask people to leave me alone."  He stated that he would have to trust if he went to a counselor and that would be a problem for him.  He stated that he does trust his wife of 21 years, which is his second marriage.  The examiner noted that the Veteran has not been hospitalized for psychiatric reasons nor has he received any outpatient care.  The Veteran reported he was full-time National Guard in active duty military and served 33 years before retiring.  He noted that he was given his disability in May 2004.  He stated, though, that for other purposes his retirement was effective January 30, 2007.  He emphasized again that he was retired and disabled. 

With regard to his present medical, occupational and social history over the previous year, he stated he had suffered dysthymic symptoms on a daily basis characterized as moderate.  The duration of these symptoms was constant over a 24 hour day 7 days a week.  He stated that the lack of trust that he feels in people is what keeps him from overcoming his dysthymia.  He reported no remissions over the past year.  His social functioning and adjustment had been minimal in that he stated he does not go out.  He will take his wife to shop but not go into the store.  He does not go to church and does not have other social functions.  Occupationally, he had not worked over the past 12 months based on his disability and retirement status.  He had no treatment over the past year.  

On mental status examination, he was cooperative and used good eye contact.  He had some pain and moved from time to time in his chair or stood up to help himself be more comfortable.  His speech was relevant and coherent.  Regarding his motor activity, he had movements that were slow, deliberate and designed to stretch or relieve some pain and suffering.  Regarding his mood, he admitted to dysthymia with anxiety, depression, and suffering secondary to his pain syndromes.  He denied he was suicidal or homicidal in ideation, intention or plan.  He admitted to isolation and withdrawal.  Thought content contained no delusions, no hallucinations, and no illusions.  He was noted to be not particularly obsessive or compulsive in manner; however, he has some behaviors that were for safety such as double locking his doors and checking his vehicle to make sure it is locked.  He tended to want his wife to be in bed first.  He had lights outside, both remote control and motion sensor.  He also had video monitoring at the back of the house.  He tended to rise at 1:00 am and 3:00 am to check on things in his house.  He also reported that he had guns in every room of his house as well as in his car although he noted that he lived in a safe neighborhood and he was just taking precautions.  He was somewhat phobic and distrustful and avoidant in behavior.  He did report sleep impairment and reported using a CPAP as well as being up and down due to pain through the night.  His appetite remained intact, and his general life interest remained intact though he limited himself due to his lack of trust and his pain.  Intellectual and sensorial functioning was grossly intact.  He appeared oriented to person, place, time, self and situation.  His general information was adequate.  He was able to abstract in proverbs.  His judgment was intact to simple situations.  His insight included the need to keep his medical appointments and his care.  There was no memory loss noted.  He denied panic attacks.  He admitted to depression, depressed mood, and anxiety.  He had no impulse control problems.  He was noted to self-medicate with beer up to a 12-pack a day which he drinks throughout the day in order to help him move around a bit.  He had the ability to maintain minimal personal hygiene and other basic activities of daily living, stating "I try to."  He stated that he showers at least every three days but reported he had not shaved that day because it would have been painful for him to stand at the sink to shave.

The examiner diagnosed the Veteran to have dysthymia.  He assigned a GAF score of 65.  The examiner stated that the Veteran is suffering some impairment to occupational and social functioning but this appears to be something that he self-managed and had not sought the help of counselors, therapists or medication.  The effects of the mental disorder on occupational and social functioning were best characterized as reduced reliability and productivity due to the dysthymia.  The signs and symptoms included his isolation, lack of trust, his emotional distress manifested by his frequent checking for objects outside his home and his caution of having weapons and having surveillance camera and lights available.  The examiner noted that, at that time, he did not have a mental disorder that required continuous medication.

The final evidence is the January 2011 private psychological evaluation report upon which the RO granted the 100 percent disability rating.  As such, no further discussion of this evidence is necessary as it would not provide a basis for an earlier higher rating.

At a Board hearing held before the undersigned in May 2013, the appellant testified that the Veteran's psychiatric condition worsened during the last year he was alive in that he would only talk with her and his stepdaughter and he became paranoid especially of the government.  She also testified that the Veteran quit working and she felt that he just gave up because he could not focus and function due to, at least in part, his psychiatric problems.  The appellant further testified that, around the time of the July 2008 private psychiatric evaluation, the Veteran was having some problems with personal hygiene in that he would not shave, comb his hair or bathe.  He also would not leave the house.  She stated that this came on gradually.

Analysis

Initially the Board notes that, in awarding a 100 percent for the Veteran's service-connected dysthymic disorder due to chronic pain in the March 2012 rating decision, the RO determined that it was not able to delineate the symptoms between the Veteran's service-connected dysthymic disorder due to chronic pain and his nonservice-connected psychiatric disorders diagnosed by the private psychologist and further evaluation for symptom delineation was not possible because the Veteran was deceased.  Hence, the RO reviewed the evidence sympathetically and used all psychiatric symptoms in support of the 100 percent evaluation assigned.  The Board finds will do the same if it is unable to delineate the symptoms between the Veteran's service-connected and nonservice-connected psychiatric disorders as set forth in any of the medical reports of record.  See Mittleider v. West, 11 Vet. App. 181 (1998).  

At a May 2013 Board hearing, the appellant's representative argued that a 70 percent disability rating was warranted based upon the April 2005 private psychological evaluation.  The Board disagrees because it finds that this evaluation does not assess the Veteran's service-connected dysthymic disorder due to chronic pain but rather evaluates nonservice-connected psychiatric disabilities.  Although the private psychologist noted that the Veteran "also has depression secondary to pain," his assessment of the Veteran's psychiatric disorders did not include a diagnosis related to chronic pain.  The psychologist assessed the Veteran to have PTSD with depression and major depressive disorder.  There was no discussion in the report of the effect the Veteran's chronic pain had on his mental health.  Furthermore, the Veteran's depressive symptoms were not associated with either his PTSD or major depressive disorder.  The Board notes that the Attachment B that set forth the criteria met for a DSM-IV diagnosis of major depressive disorder indicates that the symptoms are not due to direct physiological effects of a substance or general medical condition.  Consequently, the Board finds that the diagnosis of major depressive disorder was not associated with the Veteran's service-connected dysthymic disorder, which is due to his chronic pain from multiple musculoskeletal disabilities such as bilateral knee disorders, a lumbar spine disorder with bilateral sciatica, and left inguinal hernia.  

In conclusion, the Board finds the April 2005 private psychological evaluation to not be probative evidence of the severity of the Veteran's service-connected dysthymic disorder due to chronic pain as there is no discussion in the report (and in the assignment of a GAF score) of how the Veteran's chronic medical conditions causing him pain have affected his mental health and impaired his occupational and social functioning.  Moreover, the diagnosis of major depressive disorder is clearly not based upon the Veteran's medical conditions because such is precluded by the DSM-IV criteria in establishing such a diagnosis.  Hence, a higher disability rating is not warranted based upon this private psychological evaluation.

The Board finds, however, that a higher disability rating of 30 percent is warranted based upon the August 2005 VA mental disorders examination.  The examiner clearly focused on the Veteran's service-connected dysthymic disorder and the effects it alone was having on the Veteran's occupational and social functioning.  The examiner characterized the Veteran's dysthymic disorder as long lasting, mild depression.  He assigned a GAF score of 75, which he noted referred to the effects of depression/dysthymic disorder only.  This GAF score is consistent with symptoms that are transient and expectable reactions to psychosocial stressors and cause no more than slight impairment in social, occupational or school functioning.  Although the GAF score would indicate only mild impairment, however, the Board finds that the symptoms noted by the examiner are more consistent with the criteria for a 30 percent disability rating than those for a 10 percent rating.  Specifically, the examiner noted that the Veteran has depression ("mood dysphoric (mild level of depression)"; suspiciousness ("unusual thoughts regarding fear of terrorists in West Virginia); chronic sleep impairment ("severe sleep impairment") and mild memory loss ("mildly impaired remote memory").  Furthermore, the Veteran also had inappropriate behavior in that he abused alcohol as a means of self-medicating his pain and to help him sleep.  

Although the extent of occupational impairment is unclear, it is clear that these symptoms caused some social impairment in that the Veteran only had a relationship with his wife.  He did not have contact with his two living daughters, had little contact with his siblings, and did little socializing.  He basically went to work and came home.  Consequently, the Board finds that the Veteran's symptoms and disability picture clearly are consistent with the criteria for a 30 percent disability rating.  To that extent, a disability rating of 30 percent is granted but no higher as the evidence fails to demonstrate that the Veteran had occupational and social impairment with reduced reliability and productivity.  Although there is some indication the Veteran had disturbance in motivation given his statement that he was "tired of the military now because they don't know what they're doing," and also evidence of difficulty in establishing and maintaining social relationships, the Board finds that the evidence does not show that these symptoms alone rise to the level of meeting the criteria for a 50 percent disability rating as the evidence fails to demonstrate that they caused the Veteran to have reduced reliability and productivity.  There is no indication in the VA examination report that the Veteran reported he was having problems with work or in establishing and maintaining effective work relationships.  Although the Veteran reported having lost 10 weeks in the last 12 months due to medical appointments, a foot operation and elective days off, there is no indication that this time lost had anything to do with the Veteran's service-connected dysthymic disorder as the Veteran reported receiving no mental health treatment nor missing days due to depression.  Hence a disability rating of 30 percent, but no higher, is warranted based upon the August 2005 VA examination findings.

As for the June 2008 private psychological evaluation and the September 2008 VA mental disorders examination, the Board finds that the dysthymia/depression symptoms reported in these reports are consistent with those reported at the August 2005 VA examination and, therefore, the Veteran's disability picture as to his service-connected dysthymic disorder remained consistent with the criteria for a 30 percent disability rating and no higher.  The Board acknowledges that the June 2008 private psychologist diagnosed the Veteran to have PTSD and a generalized anxiety disorder in addition to dysthymia but finds that she set forth the Veteran's symptoms in enough detail that the Board is able to delineate what symptoms are related to his dysthymic disorder versus his nonservice-connected disorders (especially when compared with the two VA examinations) and, for any symptoms that may overlap, the Board has given the benefit of the doubt to the appellant and assigned those to the Veteran's dysthymic disorder.  The Board also acknowledges that the private examiner assigned a GAF score of 45 based upon the Veteran having no leisure activities, chronic pain and fatigue, and limited social outlet.  The Board finds, however, that this GAF score encompasses the impairment caused by the nonservice-connected diagnoses of PTSD and generalized anxiety disorder in addition to the service-connected dysthymia.  Consequently, it is not sufficient to evaluate the impairment in functioning caused solely by the Veteran's service-connected dysthymic disorder due to chronic pain.  Rather the Board finds that the GAF score of 65 provided by the September 2008 VA examiner to be more probative as to the Veteran's impairment of functioning resulting from his service-connected dysthymic disorder due to chronic pain as the examination itself was clearly focused on that disorder and the symptoms related thereto rather than the nonservice-connected disorders of PTSD and generalized anxiety disorder.  

Furthermore, the Board finds that the June 2008 private psychiatric evaluation and the September 2008 VA examination do not support a higher evaluation as they fail to demonstrate the criteria for one are met.  In fact, the September 2008 VA examiner specifically stated that the effects of the Veteran's mental disorder on occupational and social functioning was best characterized as reduced reliability and productivity due to signs and symptoms including isolation, lack of trust, emotional distress manifested by frequent checking for objects outside his home and caution of having weapons and surveillance cameras and lights available.  This assessment clearly places the Veteran's disability picture for his service-connected dysthymic disorder due to chronic pain squarely within the criteria for a 30 percent disability rating.  The Board acknowledges that the June 2008 private psychologist indicated in the summary in her report, although stating he was appropriately dressed and groomed at the time of the interview, that the Veteran reported he did not take a shower very often and that his pain was his reason for not keeping up with his personal hygiene.  Consequently, although the appellant testified as to his lack of personal hygiene, by the Veteran's own statements, this was due to his pain and not due to his dysthymic disorder.  Furthermore, the Veteran failed to report such problems just a few months later at the VA examination and they were also not reported at the January 2011 private psychiatric evaluation suggesting that these problems were only temporary and specific to the period of time when he underwent the private psychiatric evaluation in June 2008.  Hence, the Board declines to find that such problems at that time warrant a higher disability rating for the Veteran's service-connected dysthymic disorder.  

In conclusion, the Board finds that a disability rating of 30 percent is warranted for the Veteran's service-connected dysthymic disorder due to chronic pain from May 21, 2004, the date of the grant of service connection (since this is an appeal of an initial rating) until the grant of 100 percent effective January 2, 2011 (the date of the last private evaluation).  To that extent, the appeal is granted.  As to a disability rating higher than 30 percent for that period, the Board finds that the preponderance of the evidence is against finding that the Veteran's disability picture is consistent with the criteria for a disability rating higher than 30 percent, and the claim is denied to that extent.  In making this decision, the Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits.  Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.
 
Bursitis of the Bilateral Knees

In the October 2005 rating decision, service connection was established for bursitis of the bilateral knees evaluated as 10 percent for each knee effective May 21, 2004.  The Board notes, however, that service connection for residuals of a fracture of the right leg with traumatic arthritis and meniscus maceration (claimed as right lower extremity and right knee condition) was denied because the evidence established that the Veteran fractured his right leg in July 1979 in a motorcycle accident, which was not shown to have been while the Veteran was serving on active duty.  As a result of an August 2005 VA examination, the examiner opined that the traumatic arthritis and meniscus maceration were due to the Veteran's prior injury which was not during a period of active duty.  

Under Diagnostic Code 5019, bursitis is evaluated as degenerative arthritis, on the basis of limitation of motion of the affected part.  38 C.F.R. § 4.71a. 

Standard range of motion of the knee is from 0 degrees (on extension) to 140 degrees (on flexion).   38 C.F.R. § 4.71, Plate II. 

Under Diagnostic Code 5260, a 10 percent is warranted where flexion was limited to 45 degrees.  A rating of 20 percent is warranted where flexion was limited to 30 degrees and a rating of 30 percent is warranted were flexion was limited to 15 degrees.  38 C.F.R. § 4.71a. 

Under Diagnostic Code 5261, a 10 percent rating is warranted where extension was limited to 10 degrees and a 20 percent rating is warranted where extension was limited to 15 degrees.  A rating of 30 percent is warranted where extension was limited to 20 degrees while a 40 percent rating is warranted where extension was limited to 30 degrees.  A 50 percent is warranted where extension was limited to 45 degrees.   38 C.F.R. § 4.71a.  Separate ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint.  See VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004).

Initially the Board notes that private hospital records demonstrate that the Veteran was involved in a motorcycle accident in July 1979 and incurred a comminuted tibial plateau fracture and fracture of neck of the fibula of the right lower extremity.  He underwent surgical repair with an open reduction internal fixation with an eight hole ASIF tube plate and two K-wires and one cancellous bone screw into the tibial plateau.  He also had a torn right medial meniscus which was removed.  In March 1981, he underwent removal of ASIF device.  It was noted at that time that he had full range of motion of the right knee with some slight tenderness along the plate.  

In June 2004, the Veteran had an initial Primary Care evaluation after his recent return from Iraq at the VA Outpatient Clinic in Clarksburg, West Virginia.  At that time, his history was noted to be positive for chronic right knee pain from old trauma with surgery due to a motor vehicle accident and recent history of left prepatellar bursitis.  At an October 2004 Primary Care follow up, the Veteran complained of increased bilateral knee pain.  Physical examination noted, however, that the Veteran had full range of motion of the knees although he had pain with flexion and rotation.  There was no edema.  His gait was symmetric. There was joint line tenderness.

A private treatment note from April 2005 shows the Veteran had a magnetic resonance imaging (MRI) study done of his right knee.  It demonstrated that marked joint space narrowing consistent with degenerative tear to the lateral meniscus was not identified.  Marked maceration was, however, noted of the meniscus with the possibility of a loose body consisting of fragmenting meniscus.  There were significant arthritis type changes to the patellofemoral groove.  A June 2005 treatment note indicates the MRI showed degenerative changes in the medial and lateral compartment and perhaps the patellofemoral joint.  At that time, the Veteran complained of achy type pain in his right knee.  He had 1+ swelling in the knee, significant subpatellar crepitance and tenderness at the medial and lateral joint lines.  McMurray's was negative.  The knee was stable.  An Operative Report shows the Veteran underwent arthroscopic surgery on the right knee with shaving of the patella and a small area of medial femoral condyle, and a partial lateral meniscectomy.  In the medial compartment, there was noted chondromalacia of the medial femoral condyle, but no tear of the meniscus.  The cartilaginous surface had a small area of Type II chondromalacia.   In the lateral compartment, a partial meniscectomy was performed, posterior third of meniscus was contoured and the lateral femoral condyle was shaved.  Also the retropatellar surface had Type II changes and was shaved.  Follow up treatment note in October 2005 noted he had Type IV changes of the lateral tibial plateau where he still had some tenderness.

Evaluation in April 2006 at the VA in Clarksburg showed complaints of knee pain but there was full range of motion and no edema.  Subsequent treatment records continue to show the same.

In June 2006, the Veteran underwent examination for the purpose of determining whether he should be referred to a Medical Board for discharge from the National Guard due to disability.  The Veteran's history of right knee injury in 1979 (while not on active duty) was noted.  As for the left knee, a history of the Veteran having developed swelling while in Iraq was noted and that he was told he had bursitis.  He reported he cannot work as a mechanic because his knee prevents kneeling and climbing.  He also cannot do ruck marches because of both his back and knee.  His arthroscopy of the right knee in June 2005 was noted as well as his history of having two inguinal hernias, which he reported he planned to have repaired after retirement.  

Subjectively the Veteran complained that his right knee hurt all the time.  It did not swell.  The pain was mostly lateral.  There was occasional giving way.  He had increased pain when he tried to crouch or kneel.  He wore a knee brace and could only walk about three blocks.  He could not run.  He rated his knee pain as a steady 4/10.  Sometimes he awakened with right knee pain and throbbing.  

Physical examination of the right knee revealed mild valgus alignment and mild visible thigh atrophy.  There was a well-healed lateral incision.  No effusion.  The knee was stable.  Gentle McMurray caused no localized pain.  Manipulation of knee caused pain.  Patellofemoral tracking was normal.  Thigh circumference measured at 15 cm above the upper pole of the patella was 53 cm compared to 54 on the left.
Active range of motion of the right knee taken three times was as follows:


1
2
3
Avg
Flexion
126
124
128
126
Extension
0
0
0
0

Diagnostic X-rays (weight bearing) showed changes consistent with prior proximal tibia shaft and depressed lateral plateau fracture.  The lateral tibial plateau remains slightly depressed.  Joint space was maintained but was slightly narrowed and irregular laterally.  Mild medial compartment arthritic changes were noted.

Physical examination of the left knee showed no effusion.  It was stable. There was normal McMurray & Lachman.  Active range of motion of the left knee taken three times was as follows:



1
2
3
Avg
Flexion
136
134
138
136
Extension
0
0
0
0

Diagnostic X-rays (weight bearing) revealed mild osteoarthritis.

Diagnoses included post-traumatic arthritis, R knee, not acceptable UP AR 40-501, 3-14c, but no diagnosis of a disorder of the left knee.  The conclusion was that his right knee symptoms are stable at this time but may worsen through the years.  He may be a candidate for joint replacement in the future.  His current symptoms preclude performance of duty.  In this physician's opinion, the Veteran's right knee symptoms were largely the result of the described motorcycle accident and subsequent inevitable development of degenerative changes.  

From October to November of 2007, the Veteran underwent physical therapy for multiple medical conditions including his bilateral knee pain.  These records, however, provide no relevant information for rating purposes.  From February to March 2008, the Veteran was seen for treatment of his right knee by a pain and rehabilitation center.  A February 20th note indicates there was crepitus in the right knee but range of motion was normal.

Private orthopedic treatment records from November 2007 through April 2010 demonstrate the Veteran's right knee was noted to have collapsed and his left knee had narrowing of the medial joint compartment and chondrocalcinosis on X-ray.  He received Supartz injections in both knees during this period of time with good relief.  

In addition to the above treatment records, the Veteran underwent two VA examinations in August 2005 and July 2008.  At the August 2005 examination, the examiner noted that the service treatment records show the Veteran was seen in January 2004 after a fall with pain in the left knee and diagnosed with prepatellar bursitis.  He also noted that an April 2004 note showed bilateral knee pain worse on deployment and a diagnosis of bursitis of the bilateral knees.  The examiner further noted the prior history of the right tibia-fibula fractures.  The Veteran reported he had surgery on the right knee in June 2005.  He had diagnostic arthroscopy with shaving of the patella, arthroscopic shaving of a small area of the medial femoral condyle, and arthroscopic partial lateral meniscectomy with a diagnosis of type 4 degenerative changes of the lateral compartment and chondromalacia patella.  He reported he was first diagnosed with bursitis in his bilateral knees while on active duty.  He reported constant pain in both knees, no weakness, stiffness in right knee only, and no swelling, heat or redness in either knee.  There was a sensation of instability or giving way in the right knee, but no locking of either knee.  There was fatigability and lack of endurance in both knees.  Flare-ups were precipitated by walking or standing.  Pain was characterized as severe but the frequency and duration of it varied.  Flare ups were alleviated with medication and time.  With regard to additional limits due to flare ups, he said it stopped him and he could not really do anything because he could not stand or walk.  He, however, denied use of any assistive devices.  He denied recurrent subluxation or constitutional symptoms.  He reported that he had to change jobs because of these problems.  He reported he worked as a mechanic but recently was taken off the floor and put on a computer job.  He said he had to climb up and down equipment and lift parts, and he could not do it anymore because of a hernia and his feet, knees and back.

On physical examination, his posture was normal. Gait was antalgic favoring the right.  Inspection of the knees revealed no obvious deformities, no joint line tenderness, and no edema or effusion.  There was multiple scarring noted on the right knee.  Range of motion of the right knee was 0 to 110 degrees with further decrease to 100 degrees with repetition.  Range of motion of the left knee was 0 to 120 degrees with further decrease to 115 degrees with repetition.  The Veteran expressed discomfort throughout all aspects of range of motion with increased discomfort, particularly noted with repetitive flexion of the right knee which led to further decrease in motion.  There was a moderate amount of crepitus in the right knee and a mild amount in the left knee.  The joints were stable with negative Lachman's, McMurray and drawer signs.  

X-rays of the right knee showed an old healed fracture involving the proximal portion of the right tibia as well as a healed fracture of lateral tibial plateau with fusion of the head of the fibula on the right side to the proximal tibia.  There was also chondrocalcinosis on the right side.

The examiner's impression was chronic bursitis of the left knee and traumatic arthritis and meniscus maceration due to prior injury (1979) of the right knee.  The examiner noted that the Veteran developed bursitis in bilateral knees while on active duty and continued to have mild bursitis; however, given the pre-existing right knee condition, only 50 percent of the Veteran's right knee limitations were due to bursitis. 

The Veteran underwent a second VA examination in July 2008.  At this examination, only the Veteran's left knee was examined.  (The Board notes that the RO mistakenly requested examination for bursitis of the right ankle instead of the right knee and the Veteran actually reported it was his right foot he was service-connected for but he is not service-connected for any right foot disorder.)  He reported that he has pain all the time on the lateral aspect of the left knee.  It popped a lot.  There was intermittent swelling and there was frequent locking.  There was no weakness, stiffness, heat, redness, giving way, fatigability, or lack of endurance.  Treatment was with pain medication and rest.  He reported that the more he stands and walks, the more the knee hurts.  He had a difficult time getting in and out of the vehicle, could not sit with the knee bent or stand for very long because it would cause increased pain.  Flare-ups were moderate to severe, the frequency and duration varied, and were alleviated with rest and medication.  They limited his functioning in that he had to stop whatever he was doing.  He used no walking or assistive devices for the left knee.  There were no episodes of dislocations, recurrent subluxations, constitutional symptoms or prosthesis.  Occupationally, the Veteran reported that he last worked in March 2007 with the National Guard as a mechanic and working on computers.  His ability to perform physical employment was limited per Veteran report in that he could not stand, walk, or lift.  With sedentary employment, he said he could not sit very long or he would get increased back pain and increased left leg numbness and left knee pain.

On physical examination, there was no obvious deformity, edema, effusion or areas of tenderness.  Range of motion of the left knee was 0 to 120 degrees.  There was pain at the endpoint of motion with repetition and flexion that became further reduced to 105 degrees due to increased pain.  There was a moderate amount of crepitus noted in the left knee.  The knee was stable.  The impression was bursitis of the left knee.

At the February 2008 hearing before a Decision Review Officer at the RO, the Veteran testified that he began having bilateral knee pain while on active duty in Iraq due to walking through sand in full gear.  He was treated in Iraq for fluid on the left knee and was given pain medication for both knees.  After he returned, he sought treatment with his private physician who he said X-rayed both knees and said he had osteoarthritis.  He also said he was told by his physician, after having arthroscopy on the right knee, that he had a "cracked meniscus."  He stated he has no cartilage in his knee.  He reported having injections in his knees.  He testified that the right knee would give out on him every one in a while, and sometimes the left knee would too.  He also testified that his right knee "can only go back so far with it now. Used to have full range of motion.  Now it just hurts.  It hurts too bad."  Also, sometimes it "snaps" or "you can hear a real loud pop."  He stated this happened to the left knee too.  The appellant testified at the May 2013 hearing before the Board that the Veteran's knees were painful and "it was like bone on bone."  She related that his knees would give way and there was "just scraping."  

Right Knee

The Board finds that the evidence fails to demonstrate that the Veteran's service-connected bursitis of the right knee warrants a disability rating higher than 10 percent.  The evidence shows that, even with the Veteran's nonservice-connected residuals of fracture of the right tibia and fibula (degenerative joint disease), the range of motion of his right knee was full in extension and limited in flexion to no less than 100 degrees after repetition.  (See August 2005 VA examination.)  In order for a higher rating to be warranted under either Diagnostic Code 5260 or 5261, flexion must be limited to at least 30 degrees and extension limited to 15 degrees.  Clearly the medical evidence of record fails to demonstrate that such limitations of motion are contemplated in the present case even with consideration of the DeLuca factors such as additional limitation of functioning on flare ups, weakness, incoordination, fatigability, or lack of endurance.  "Pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system.  Pain in, like deformity of or insufficient nerve supply to, a particular joint may result in functional loss, but only if it limits the ability 'to perform the normal working movements of the body with normal excursion, strength, speed, coordination[, or] endurance.'"  Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011) (citing 38 C.F.R. § 4.40).  Consequently, although the Veteran had painful motion, a higher rating is not assignable without additional functional loss.  Id. at 33, 43.  

The Board finds that the medical professionals have associated at least half, if not most, of the Veteran's symptoms of the right knee to his nonservice-connected fracture residuals.  The August 2005 VA examiner clearly stated that only 50 percent of the Veteran's symptoms are related to his service-connected bursitis.  The remaining symptoms are related to his prior fractures.  In addition, the June 2006 Medical Board examiner stated that the Veteran's right knee symptoms are largely the result of the injuries sustained in the 1979 motorcycle accident (i.e., the fractures of the tibia and fibula) and subsequent inevitable development of degenerative changes.  Furthermore, the VA treatment records indicate that the assessment relating to the Veteran's chronic pain in his right knee is that it is related to the old trauma with surgery.  Consequently, the Board finds that such symptoms of the right knee as stiffness, instability or giving way, swelling, crepitance, valgus and/or varus deformity, and thigh muscle atrophy are related to the Veteran's nonservice-connected residuals of fractures of the right tibia and fibula.  Likewise, they do not justify a separate rating, for example for instability, because such symptoms are related to the Veteran's nonservice-connected fracture residuals and not his service-connected bursitis.  See Mittleider, 11 Vet. App. at 118.

In so much as the symptom of pain in the right knee overlaps between the service-connected bursitis and the nonservice-connected residuals of the fracture of the right tibia and fibula with degenerative joint disease, the Board finds that the present 10 percent disability rating adequately reflects the disability picture presented.  The Veteran had slight limitation of motion of the knee that worsened due to pain upon repetitive motion, and joint line tenderness.  His pain is exacerbated by weight bearing and sitting for too long.  His limitations of motion, even when taking all of these factors into consideration, does not even come close to contemplating the degree required by the rating criteria for a higher disability rating.  

In making this determination, the Board acknowledges the testimony provided by the Veteran and the appellant.  The Board finds, however, that their testimony as to the symptoms the Veteran had relating to his right knee and whether it is related to the service-connected disability is not as probative as the medical opinions of record relating the majority of the Veteran's symptoms to residuals of the nonservice-connected fracture of the tibia and fibula in 1979.  As a lay person, neither the Veteran nor the appellant is competent to establish a medical diagnosis or show a medical etiology merely by his or her own assertions because such matters require medical expertise.  See 38 C.F.R. § 3.159(a)(1) (Competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions).  Because the Veteran and the appellant are not professionally qualified to offer a diagnosis or suggest a possible medical etiology, their statements are afforded little weight as to the etiology of the Veteran's right knee symptoms.

Consequently, the Board finds that the preponderance of the evidence is against finding that a disability rating higher than 10 percent is warranted for the service-connected bursitis of the right knee.  The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits.  The claim is, therefore, denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Left Knee

The Board finds that the evidence fails to demonstrate that the Veteran's service-connected bursitis of the left knee warrants a disability rating higher than 10 percent.  The evidence shows that, although there was X-ray evidence of osteoarthritis, the Veteran is only service-connected for bursitis.  Nevertheless, osteoarthritis and bursitis are evaluated under the same criteria such that separate ratings would not be warranted.  See 38 C.F.R. § 4.14 (regarding pyramiding).  The evidence of record demonstrates that range of motion of the Veteran's left knee was full in extension and limited in flexion to no less than 105 degrees after repetition due to pain.  (See July 2008 VA examination.)  In order for a higher rating to be warranted under either Diagnostic Code 5260 or 5261, flexion must be limited to at least 30 degrees and extension limited to 15 degrees.  

The Veteran's main complaint relating to his left knee bursitis was pain, although he did report at the July 2008 examination that he also had intermittent swelling and frequent locking.  However, on physical examination, there was no swelling or tenderness around the knee.  There was a moderate amount of crepitus noted.  The knee was stable.  Also, on examination in June 2006 for Medical Board purposes, it was noted the McMurray and Lachman tests were normal and the knee was stable without effusion. The Board further notes that, at the August 2005 VA examination, the Veteran reported having weakness and fatigability in the knees but he denied having those problems in the left knee at the July 2008 VA examination.  He did, however, report at both examinations of having flare ups of knee pain that limit his functioning in that he has to stop what he is doing and rest and take medication to alleviate the flare up, although the Veteran denied using any walking or assistive devices for his knee.  With regard to the frequency and duration of flare ups, however, the Veteran was vague and the examiners only noted his report that they vary.  "Pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system.  Pain in, like deformity of or insufficient nerve supply to, a particular joint may result in functional loss, but only if it limits the ability 'to perform the normal working movements of the body with normal excursion, strength, speed, coordination[, or] endurance.'"  Mitchell, 25 Vet. App. at 38.  Consequently, although the Veteran had painful motion, a higher rating is not assignable without additional functional loss.  Id. at 33, 43.  

The Board finds, therefore, that the medical evidence of record fails to demonstrate that the Veteran's disability picture was consistent with the limitations of motion for the next higher rating in the present case even with consideration of the DeLuca factors such as additional limitation of functioning on flare ups, weakness, incoordination, fatigability, or lack of endurance.  Furthermore, there is no evidence to support a finding that separate evaluations are warranted as the Veteran has full extension of the knee and only slight limitation of flexion, there is no instability or subluxations, no meniscal cartilage issues and no ankylosis of the knee.  

In making this determination, the Board acknowledges the testimony provided by the Veteran and the appellant.  The Board finds, however, that the probative and persuasive evidence as to the nature and severity of the Veteran's left knee problems is the contemporaneous medical evidence that fails to show he had as severe a knee disability as reported.

Consequently, the Board finds that the preponderance of the evidence is against finding that a disability rating higher than 10 percent is warranted for the service-connected bursitis of the left knee.  The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits.  The claim is, therefore, denied.  

Degenerative Joint Disease, Lumbar Spine, with Sciatica, Bilateral Lower 
Extremities 

The Veteran's degenerative joint disease of the lumbar spine was evaluated as 10 percent disabling under Diagnostic Code 5242.  Separate ratings of 10 percent for each lower extremity have also been awarded for sciatica.  The Veteran (and now the appellant) claim that higher ratings are warranted.

Spine disabilities are rated under the General Rating Formula for Diseases and Injuries of the Spine.  38 C.F.R. § 4.71a.  When rating under the General Rating Formula for Diseases and Injuries of the Spine, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are evaluated separately under an appropriate diagnostic code.  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1).  

With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the thoracolumbar spine, the rating criteria provide a 100 percent rating for unfavorable ankylosis of the entire spine; and a 50 percent rating for unfavorable ankylosis of the entire thoracolumbar spine.  A 40 percent rating is warranted for forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 20 percent rating is warranted for 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 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 10 percent rating is provided for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, 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.  See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.  

The rating criteria define normal range of motion for the various spinal segments for VA compensation purposes.  Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexions are zero to 30 degrees, and left and right lateral rotations 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 thoracolumbar spine is 240 degrees.  The normal ranges of motion for each component of spinal motion are the maximum that can be used for calculation of the combined range of motion.  See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2).  

The fact that the criteria include symptoms such as pain, stiffness, aching, etc., if present, means that evaluations based on pain alone are not appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurological sections of the rating schedule.  See 68 Fed. Reg. 51,455 (Aug. 27, 2003).  For example, impairment of the sciatic nerve is addressed under Diagnostic Code 8520.  Under this Diagnostic Code, complete paralysis, where the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is assigned an 80 percent rating.  38 C.F.R. § 4.124a.  For incomplete paralysis, mild is assigned a 10 percent rating; moderate is assigned a 20 percent rating; moderately severe is assigned a 40 percent rating; and severe with marked muscle atrophy is assigned a 60 percent evaluation.  Id.

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.  See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5).  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  Id.  

Medical evidence of record shows the Veteran had treatment for low back pain prior to his entrance into active duty in February 2003.  The service treatment records also show, however, that he was treated while in Iraq for low back pain in November 2003.  VA treatment record from June 2004 shows the Veteran was seen for an initial evaluation after his recent return from Iraq.  Past medical history noted a history of chronic low back pain with left sciatica.  In October 2004, the Veteran was seen and reported increased low back pain.  Physical examination showed pain was worse with spinal extension but improved with forward flexion.  An April 2006 primary care note also shows complaints of chronic back pain.  The assessment was resolving acute lumbar pain exacerbation.  Subsequent treatment records merely show continued complaints of low back pain with outside treatment for it.

In June 2006, the Veteran underwent evaluation for purposes of a Medical Board for discharge from the National Guard.  The Veteran gave a history of low back problems since May 2003 while serving as an activated National Guard soldier at Tallil Air Force Base, Iraq.  He reported he could not do a ruck march because of his back and knee.  The Veteran complained that his back hurts all the time.  At times, that pain extended to his legs, and three weeks before, he had severe pain going down his left leg.  He rated his pain as a 6 out of 10.  Physical examination of the lumbar spine noted that the Veteran walked with an uncomfortable gait because of right knee symptoms.  There was normal motion of the thoracolumbar spine but he was sore with movement, especially when he extended from the flexed position.  

Active range of motion of thoracolumbar spine was:


1
2
3
Avg
Flexion
60
62
58
60
Extension
10
12
8
10
R lat Flex
32
34
30
32
L Lat Flex
30
26
28
28
L rotation
50
50
50
50
R rotation
50
50
50
50

There was no local tenderness.  Waddell's sign was negative.  Straight leg raises were normal.  Lower extremities motor exam was normal.  Knee jerk was 2+, and ankle jerk was absent.  Pin prick sensation was intact.  X-rays of the lumbosacral spine showed mild arthritic spurring.  The diagnosis was chronic low back pain, which was not acceptable under Up 3-30h.  It was commented that the Veteran was not a candidate for back surgery.  His symptoms were stable and precluded performance of duty.  He was found medically unacceptable under provisions cited and referred to the Physical Evaluation Board.

In November 2006, the Veteran saw a private chiropractor for an initial consultation for his low back disability.  The objective findings indicate that there were difficulties in ambulation but no abnormal gait.  Muscle spasm and tenderness was present to the bilateral paravertebral levels of L4 through S1 favoring the left sacroiliac joint.  Limited range of motion was noted for flexion at 72 degrees with report of increased pain to the L5/S1 level and was reported upon extension at 24 degrees.  Straight leg raise to the left was positive at 70 degrees of hip flexion.  Neurological findings revealed diminished strength to the left lower extremity upon toe walk with no strength loss upon assessment of the intrinsic muscles of the lower back.  Strength loss, however, was noted upon left hip flexion of a grade 4+/5 but was unremarkable otherwise.  Reflexes were slightly diminished to bilateral Achilles at 1+/4 compared to the patellar and hamstring at 2/4.  Pathological reflexes were found to be absent.  Electrodiagnostic study of the bilateral lower extremities demonstrated bilateral, moderate, peroneal neuropathy with conduction block just distal to the fibular heads.  There was also electrophysiologic evidence of either a sciatic or lumbosacral plexopathy S1 radiculopathy.  The conclusion, however, was that there was no evidence to suggest radiculopathy or nerve root involvement.  MRI revealed mild degenerative changes of the lumbar spine at several levels but no significant disc herniation and no significant canal stenosis.  There were mild facet degenerative changes and some minimal bulging of the L2-3 through L5-S1 discs.  It was recommended that the Veteran take Vitamin B6 for his lower extremity complaints.  Chiropractic therapy was recommended to address the degenerative factors of the lumbar spine.  

In December 2007, the Veteran's private treating physician recommended the Veteran use a TENS unit for chronic lumbar pain, thoracic pain and right leg radiculopathy.

In February 2008, the Veteran testified at a hearing before a Decision Review Officer at the RO.  He stated that his low back pain was located right below the belt and restricted his range of motion and affected his ability to pick up things.  He described his pain as moderate to severe.  He also testified that the pain mostly went down his left leg, but sometimes it went into his right leg.  He related that this pain went all the way down to the arch of his foot and he had numbness as well.  His representative acknowledged that this sounded like the sciatic nerve. 

In February 2008, the Veteran was seen for consultation at a pain and rehabilitation center.  At that time he complained of constant dull ache in the low back that was variable in intensity.  Pain was exacerbated by sitting and felt best with lying on side.  He had difficulty in getting comfortable lying down.  Pain radiated into the left leg at nighttime.  He denied any bowel or bladder incontinence.  Physical examination showed moderate muscle tightness in the lumbar paravertebral region bilaterally.  Lower extremity strength was 5/5.  Sensation was diminished at the L5 nerve root distribution.  Deep tendon reflexes were 2+ at the patella and ankle bilaterally.  Straight leg raises produced hamstring tightness.  The assessment was left lumbar radiculopathy.  He was referred for physical therapy.  At a March 2008 consultation, he reported constant pain in his low back with constant numbness in the posterior left thigh and pain into the left lateral leg and heel.  He denied any lack of sensation or weakness.  He reported that his pain was worse at night with difficulty getting comfortable lying down.  The pain was worse with standing and when sitting five to ten minutes.  For relief, he would stand and walk around.  On physical examination, he was noted to ambulate with slight increased left hip hike and Trendelenburg lurch during right lower extremity single leg stance.  He had slight decreased left ankle dorsiflexion during left lower extremity swing with a mild foot slap after heel strike.  On palpation, he was very tender over the deep posterior sacroiliac ligaments, right greater than left, and over the bilateral iliolumbar region, right greater than left.  He also had pain bilaterally in the piriformis region, right greater than left, with increased tone noted in the right gluteal muscle.  On range of motion testing, he had flexion with fingers reaching halfway down the tibia with increase in back pain.  Extension was full.  Bilateral side bending with fingers reaching the superior patella with right side bending painless and left side bending increased pain in the lumbosacral region.  Bilateral rotation was full with no complaints.  At this point, he complained of anterior left thigh numbness from standing.  Strength in the bilateral lower extremities was 5/5 at bilateral knees and bilateral ankles.  Reflexes at the patella were 2+ on the right and 1+ on the left.  Ankles were 2+ bilaterally.  Straight leg raises were negative on the right and mildly positive on the left.  The assessment was increased pain with trunk flexion and left side bending with some limited trunk flexion due to pain.  Also, he had slight decreased bilateral hip external rotation as well as slight decreased bilateral flexion.  He had some increased low back pain with left hip flexion and decreased pain with right hip flexion.  Decreased quality of gait.  Decreased reflex left quadriceps.  Painful left straight leg raise.  Decreased flexibility.  Positive Patrick's sign on right.  Also noted was a decreased leg length on the right.  

A March 2008, follow up note indicates Veteran had repeat MRI in February, which showed increased lumbar lordosis with relatively mild disc and facet degenerative changes.  On physical examination, bilateral lower extremity strength was 5/5.  Sensation was grossly intact and symmetrical to light touch.  Deep tendon reflexes were 2+ at patella and Achilles bilaterally.  Straight leg raises were negative bilaterally.  He had some moderate tenderness and some mild tightness over the lower lumbar paravertebrals and over the sacral area with palpation.

In August 2008, the Veteran's private physician filled out a Lumbar Spine Residual Functional Capacity Questionnaire in support of his claim for disability benefits from the Social Security Administration.  On this form, she indicated that the diagnoses are lumbar degenerative joint disease and lumbar radiculopathy/leg pain.  His symptoms included low back pain with sitting, standing and walking; left leg weakness/numbness; trouble sleeping; fatigue; headaches; and depression.  She stated that the primary pain is lumbar, constant, unrelenting and left leg pain/radiculopathy was exacerbated by activities of daily living.  Objective signs and symptoms included decreased lumbar flexion/extension with pain; pain on left lateral flexion; positive straight leg raise on the left at 45 degrees; abnormal gait; tenderness; swelling; muscle spasm; muscle weakness; and impaired sleep.

Also, in August 2008, the Veteran was seen by a neurologist.  He reported that the pain developed acutely about five years before.  It was 7/10 in severity, had an aching quality and radiated into the left leg distribution down to the foot on the left side.  He reported he occasionally had pain in the right leg as well.  His pain was constant, aggravated by sitting for long periods of time, standing for long periods of time, and walking.  There were no alleviating factors reported.  He admitted problems sleeping.  He also reported left leg weakness and numbness.  He was treated with physical therapy and chiropractic management.  He reported the physical therapy was unhelpful.  He had excellent relief of back pain with block.  On physical examination, his paraspinal musculature was tight.  There was decreased lumbar range of motion.  Paraspinal muscle strength and tone were within normal limits.  Straight leg raises test was positive on the left.  There was bilateral lumbar facet loading present.   Neurological examination demonstrated motor strength and tone were normal bilaterally.  Reflexes were  2+ at the right knee and 1+ at the left knee; 2+ at the bilateral ankles.  Sensation was decreased to light touch on the left lateral thigh and right leg.  He had a normal gait and was able to stand without difficulty.  The assessment was lumbar degenerative disc disease, lumbar radiculitis, sacroiliitis, lumbar arthropathy, bursitis of the hip, and iliotibial band friction syndrome.  Subsequently, he underwent two caudal epidural steroid injections and two sacroiliac joint injections.  Follow up in October 2008 showed Veteran reported a 50 percent decrease in pain after these injections, rating his pain as 4/10.  Later in October he twice underwent a L5 medial branch block and sacral posterior primary remus block.  In November 2008, he underwent a left sacral posterior primary ramus rhizotomy for his low back pain.  In December 2008, he underwent a rhizotomy of the L5 medial branches of the dorsal primary rami on the left.

The Veteran underwent three VA examinations relating to his claims in August 2005, July 2008 and May 2011.  At the August 2005 VA examination, the Veteran reported he had had low back pain intermittently over the years but it was aggravated while in Iraq due to the lifting of equipment and the road trips from Kuwait to Iraq.  The pain was in the lower back right below the belt line, and radiated to the lateral aspect of his left leg down to about his knee.  There was stiffness and weakness.  The pain was constant.  He used Lortab once a day for his pain.  He saw a chiropractor and said that X-rays were taken before and after he went to Iraq, and had a note with him that said his degenerative disc disease was mildly more pronounced.  He reported flare ups of back pain were caused by moving around or bending over.  It was hard to straighten up after he bent over.  He described the pain during a flare up as severe.  The frequency and duration of flare ups varied.  They were alleviated with time, medication, and rest.  He denied using any walking or assistive devices.  He had no surgeries.  He reported that prolonged sitting at work makes the back feel a little worse.  Occupationally, the Veteran reported that he worked as a mechanic but recently was taken off floor and put on a computer job.  He said he had to climb up and down equipment and lift parts, and he could not do it because of the hernia as well as the feet, the knees and the back. 

On physical examination, inspection revealed no obvious deformities.  There was mild tenderness to palpation throughout the lumbar spine.  Range of motion was flexion to 80 degrees that was further reduced to 75 degrees with repetition.  Extension was 15 degrees and was further reduced to 10 degrees with repetition.  Lateral flexion was 15 degrees bilaterally and unchanged with repetition.  Lateral rotation was 10 degrees and unchanged with repetition.  There was discomfort with all aspects of range of motion but that discomfort increased with repetition of flexion and extension causing further decrease in motion.  The impression was degenerative disc disease of lumbar spine.

At the July 2008 VA examination, the Veteran complained of pain in the lower back near his belt that goes all across his lower back described as constant.  It ached and hurt all the time with occasional sharp pain.  It radiated down the right leg.  There was stiffness and weakness of the lower back.  He used Tramadol as needed for pain and a TENS unit.  He reported that he went to the Injury and Wellness Center where he was treated by a chiropractor.  Treatment did help some with no evident side effects.  Flare ups were caused by sitting, standing more than five minutes, bending, and lifting.  Pain during flare ups was moderate to severe.  Flare ups would last for minutes to hours.  They were alleviated with time, rest, and medications.  Flare ups limited his functioning in that he had to stop whatever he was doing that caused it.  He further reported some numbness in his left leg.  He said he was told that he had nerve damage from the left knee down.  He reported numbness in the left leg with sharp pains in the lateral aspect of the calf occasionally.  He reported pain in his right leg from his back down the lateral aspect to about the knee.  It felt numb on the lateral aspect of his right calf and lower leg.  He did not use any walking or assistive devices related to his spine.  No incapacitating episodes within the last 12 months.  Occupationally, the Veteran reported he last worked in March 2007 with the National Guard as a mechanic and working on computers.  His ability to perform physical employment was limited per Veteran report that he could not stand, walk, or lift.  With sedentary employment, he said he could not sit very long or he got increased back pain and increased left leg numbness and left knee pain.

On physical examination there was no obvious deformity.  There were no muscle spasms.  There was tenderness to palpation throughout his lumbar spine, more pronounced on the right of the spine.  Range of motion of the lumbar spine was flexion to 70 degrees, extension to 15 degrees, lateral flexion to 15 degrees bilaterally, and lateral rotation to 10 degrees bilaterally.  There was pain throughout each of these motions but there was no additional loss of motion with repetition.  Muscle strength was 5/5 and equal in the bilateral lower extremities.  Sensation was intact.  Deep tendon reflexes were 2+ and equal.  Straight leg raises were negative both sitting and supine.  There was no evidence of atrophy.  The impression was degenerative disc disease of the lumbar spine with sciatica of the bilateral lower extremities secondary to the degenerative disc disease of the lumbar spine.

Finally, in May 2011, the Veteran underwent a VA peripheral nerves examination at which he reported having chronic pain described as constant sharp pain which shoots down the lateral right leg with numbness in right foot and, on the left leg, numbness down the lateral leg and into the foot.  Treatment had included chiropractic, which no longer worked.  He had received injections but this also no longer worked.  He had radio frequency blocks but that did not work as well.  Current treatment included the use of TENS unit.  He reported that he would lose his balance and fall if he did not use a cane.  He had pain with ambulation and must use a cane, and was able to walk only limited distances before he had to sit down.

On physical examination, reflexes were  2+ knee jerk bilaterally (which was normal) but absent ankle jerk bilaterally.  Sensory examination was within normal limits bilaterally.  Motor strength was 3/5 on the left and 4/5 on the right at knee flexion/extension.  Ankle dorsiflexion/plantar flexion/great toe extension was 3/5 on the left and 4/5 on the right.  There was decreased muscle tone to the gastoc muscles and muscle atrophy with measurements of 32 cms. on the right compared to 35 cms. on the left.  He had an antalgic gait.  There was a slight preference to lean toward the right side when walking, and he used a cane to correct this.  The impression was bilateral peripheral neuropathy, etiology low back injury.  Nerve dysfunction - neuralgia.  The effects of this involved decreased mobility; problems with lifting and carrying; lack of stamina; weakness or fatigue; decreased strength; and lower extremity pain.  The effects on daily activities included constant pain, limited mobility, and difficulty with putting socks and shoes on, cutting toenails.

At the hearing before the Board in May 2013, the appellant testified that the Veteran had nerve blocks for his back pain but that did not help.  She stated that his back "was really messed up" and there were "days he couldn't even walk."  She stated he had crutches, a wheelchair and a walker and there were days he could not use them.  

Degenerative Joint Disease, Lumbar Spine 

The evidence of record fails to demonstrate that the Veteran had ankylosis of any segment or all of his spine or that he had a vertebral body fracture.  Consequently, the Board need not address that aspect of the rating criteria in evaluating the Veteran's degenerative joint disease of the lumbar spine.  Furthermore, the Board notes that there is no evidence of incapacitating episodes, so the Board need not consider whether a higher rating would be warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.

After considering all the evidence of record, the Board finds that a disability rating higher than 10 percent for the orthopedic manifestations of the Veteran's degenerative joint disease of the lumbar spine is not warranted.  At most the Veteran had limitation of flexion to 60 degrees, but this was only on one examination in June 2006, which was an examination to determine whether the Veteran should undergo a Medical Board for discharge from the National Guard.  In contrast, at the VA examinations in August 2005 and July 2008, the Veteran's limitation of flexion was no more than 75 and 70 degrees after repetitive motion, respectively.  In addition, a November 2006 private chiropractic record shows limitation of flexion to 72 degrees.  The Board also notes that a March 2008 private physical therapy evaluation note and an August 2008 private neurologist's note indicate the Veteran had decreased motion of the lumbar spine; however, they fail to indicate the degree of such limitation of motion to be useful for rating purposes.  In order to be entitled to a higher disability rating, forward flexion of the thoracolumbar spine must be less than 60 degrees.  Furthermore, combined range of motion (after taking into consideration additional limitation of motion after repetition) is no less than 135 degrees.  For a higher rating based on combined limitation of motion of the lumbar spine, the combined range of motion must be less than 120 degrees. 

The Board acknowledges that both VA examiners noted that the Veteran either had discomfort or pain through all aspects of range of motion; however, only the August 2005 VA examiner noted that there was decreased motion as a result of such discomfort or pain.  "Pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system.  Pain in, like deformity of or insufficient nerve supply to, a particular joint may result in functional loss, but only if it limits the ability 'to perform the normal working movements of the body with normal excursion, strength, speed, coordination[, or] endurance.'"  Mitchell, 25 Vet. App. at 38.  Consequently, although the Veteran had painful motion, a higher rating is not assignable without additional functional loss.  Id. at 33, 43.  The Board has already taken into account the additional limitation of motion caused by pain shown on the August 2005 VA examination.  As for the July 2008 VA examination, the examiner stated that no additional limitation was noted after repetitive motion despite the painful motion.  

Furthermore the Board notes that the Veteran reported having flare ups at both VA examinations.  At the August 2005 examination, he reported flare ups of back pain caused by moving and bending over that he rated as severe; however, he gave no details as to the frequency and duration of such flare ups.  The examination report merely notes that they "vary."  At the July 2008 examination, the Veteran reported flare ups of back pain caused by sitting, standing for more than five minutes, bending and lifting.  He stated the pain was moderate to severe lasting for minutes to hours; however, there is no notation as to how often these flare ups occurred.  He further reported that flare ups limited his functioning in that he had to stop whatever he was doing that caused it.  They were alleviated by time, rest and medications.  Despite these reports of flare ups, both VA examiners noted that the Veteran used no walking or assistive devices, including a back brace.  He also reported no incapacitating episodes.  Furthermore, the Veteran failed to report that flare ups caused more than increased pain.  

Finally, although there is occasional evidence that the Veteran had muscle spasm of the lumbar spine area, the evidence fails to demonstrate that there were muscles spasms or guarding causing an abnormal gait or an abnormal contour of the spine.  The Board also notes that there are some notations in the medical records that the Veteran had an abnormal gait; however, it is clear from the record that this was due to a nonservice-connected disability involving the right lower extremity and not the Veteran's degenerative joint disease of the lumbar spine (or at the very least due to neurologic manifestations of this disability and not the orthopedic manifestations).  

The Board acknowledges the Veteran's testimony in August 2008; however, it does not add anything to what is already shown in the medical evidence of record.  As for the appellant's testimony in May 2013, the Board acknowledges her statements that the Veteran's back was "a mess" and there were days he could not walk and had crutches, a walker and a wheelchair that he used on those days.  The medical evidence, however, fails to support those statements.  At the VA examination in May 2011, which the Board notes was just shortly before his death, the Veteran only reported using a cane for assistance in ambulating due to pain and loss of balance.  It is clear from that examination that there was a worsening in the Veteran's sciatica causing loss of muscle tone and weakness and this was the basis for awarding 20 percent disability ratings for his bilateral sciatica.  There is no evidence showing that the orthopedic manifestations of the Veteran's low back degenerative joint disease had worsened such that a higher disability rating would be warranted.  Consequently, the Board finds that the appellant's testimony alone is not sufficient to establish that a higher disability rating is warranted.

Consequently, based upon the evidence of record, the Board finds that the preponderance of the evidence is against finding that the Veteran's disability picture is consistent with the criteria for a disability rating higher than 10 percent as the evidence fails to demonstrate that there was limitation of forward flexion of the thoracolumbar spine to less than 60 degrees; a combined range of motion of less than 120 degrees; or muscle spasm or guarding severe enough to cause an abnormal gait or spinal contour.  The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits.  Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Sciatica of the Bilateral Lower Extremities 

Service connection was established for sciatica of the bilateral lower extremities effective July 27, 2006, and a 10 percent disability rating was assigned for each lower extremity.  By rating decision issue in March 2012, a 20 percent disability rating was assigned for each lower extremity effective May 19, 2011, the date of a VA peripheral nerves examination.  The Board will consider each period of time to determine whether a higher disability rating is warranted.

For the period prior to May 19, 2011, the Board finds that a disability rating higher than 10 percent under Diagnostic Code 8520 is not warranted for sciatica in each lower extremity.  Prior to May 19, 2011, the Veteran's complaints of symptoms of sciatica were mostly subjective with intermittent objective findings.  In addition, the Board notes that, at one time, symptoms would only be reported in one lower extremity and not the other and then, at a different time, they would be reported in the other lower extremity.  Only infrequently would symptoms be reported in both lower extremities.  

As for the left lower extremity, the evidence shows the Veteran initially had only subjective complaints of symptoms in this lower extremity.  Neurological examination was within normal limits at the August 2005 VA examination and the June 2006 evaluation for Medical Board purposes for discharge from the National Guard, except for absent ankle jerk in June 2006.  

Chiropractic consultation note from November 2006, however, showed he had a positive straight leg raise on the left with diminished strength upon toe walk.  Reflexes were noted to be slightly diminished to Achilles at 1+/4 and pathological reflexes were found to be absent.  Furthermore, although an EMG/NCV study report indicated evidence of bilateral, moderate, peroneal nerve neuropathy and evidence of either a sciatic or lumbosacral plexopathy, this test was interpreted as showing no evidence to suggest radiculopathy or nerve root involvement.  The November 2006 MRI also failed to demonstrate any significant canal stenosis or focal disc herniation that would explain the Veteran's symptoms.  In February 2008, evaluation at a pain and rehabilitation center showed diminished sensation at the left L5 nerve root distribution but straight leg raises only producing hamstring tightness and normal deep tendon reflexes.  Follow up notes in March showed straight leg raise on the left was negative and sensation was grossly intact; however, knee reflex was diminished on the March 4th evaluation but not on follow up on March 18th.

On VA examination in July 2008, despite the Veteran's subjective complaints of symptoms in his bilateral lower extremities, straight leg raises was negative bilaterally in both sitting and supine positions.  Muscle strength was full, and sensation was intact.  In contrast, on private neurology evaluation in August 2008, the Veteran was noted to have decreased sensation to light touch of the left lateral thigh and knee reflex was decreased.  On a Arthritis Residual Functional Capacity Questionnaire dated in March 2009, the Veteran's primary physician reported the Veteran had left leg radiculopathy with a positive straight leg raise test on the left.  

Based upon this evidence, the Board finds that the evidence establishes that the Veteran's disability picture was consistent with no more than mild impairment of the sciatic nerve.  The Board acknowledges that the words "mild," "moderate," and "moderately severe" are not defined in Diagnostic Code 8520; however, "severe" is modified to include "with marked muscular atrophy."  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decision is "equitable and just."  38 C.F.R. § 4.6.  

The Board notes that the Veteran had no symptoms anywhere near consistent with complete paralysis of the sciatic nerve.  Nor is there any evidence that the Veteran had severe impairment of the sciatic nerve with marked muscular atrophy.  In fact, no atrophy of the left lower extremity is noted in the medical evidence.  Rather, the evidence shows there was mostly subjective complaints with intermittent objective findings of no more than a positive straight leg raise (which is the test for the presence of sciatica), occasional diminished sensation and alternating absence of either ankle or knee reflex.  Consequently, the Board finds that it is fair to characterize the Veteran's symptoms as mild based upon the medical evidence of record.  A 10 percent disability rating is the rating most consistent with this finding.  Hence, the Board concludes that the preponderance of the evidence is against finding that a disability rating higher than 10 percent is warranted prior to May 19, 2011. 

As previously discussed, in a March 2012 rating decision (which was issued after the Veteran's death), a 20 percent disability rating was awarded based upon the findings of a VA peripheral nerves examination conducted on May 19, 2011.  A 20 percent rating is consistent with a moderate impairment of the sciatic nerve.  See 38 C.F.R. § 4.124a, Diagnostic Code 8520.  After reviewing the May 2011 VA examination report, the Board concludes that therein do not demonstrate a disability picture that is consistent with a disability rating higher than 20 percent.  The Veteran complained of numbness down the lateral left leg and into the foot.  He reported pain on ambulation, having to use a cane and being able to walk only a limited distance before he has to sit down.  Physical examination was positive for absent ankle jerk reflex and loss of muscle strength and muscle tone.  Sensory examination was, however, within normal limits.  

In comparison with the earlier evidence of record, the Board does find that a worsening in the Veteran's sciatica of the left lower extremity is demonstrated by the findings at the May 2011 VA examination which show he had loss of muscle strength and tone that he did not previously have.  However, his sensation was within normal limits and only the ankle jerk reflex was absent.  Thus there were no objective signs to support the Veteran's report of numbness in the left lower extremity.  Consequently, the Board finds that the disability picture represented by the May 2011 VA examination is consistent with no more than a moderate impairment of the sciatic nerve or, in other words, a 20 percent disability rating.  

A higher disability rating is not warranted because the VA examination findings failed to demonstrate that there were symptoms rising to the level of a more severe impairment.  In other words, there was no atrophy of the left lower extremity muscles and no symptoms consistent with loss of active movement below the knee to include the foot or that there was weakened flexion of the knee.  Furthermore, sensation was not impaired and reflexes were present except for ankle jerk.  Hence, the Board does not find the disability picture established is consistent with a moderately severe impairment of the sciatic nerve even though there is evidence of loss of muscle strength and tone but no atrophy.  Consequently, the Board finds that the preponderance of the evidence is against finding that a disability rating higher than 20 percent for sciatic of the left lower extremity is warranted as of May 19, 2011.

As for the right lower extremity, the evidence shows the Veteran initially had only subjective complaints of symptoms in the left lower extremity.  First complaints relating to the right lower extremity are not seen until the July 2008 VA examination.  At that time, despite the Veteran's subjective complaints of sharp pain radiating down his right leg, straight leg raise was negative in both sitting and supine positions.  Muscle strength was full, and sensation was intact.  The assessment, however, was sciatica, bilateral lower extremities.  In contrast, on private neurology evaluation in August 2008, the Veteran reported occasional pain in the right leg.  On physical examination, he was noted to have decreased sensation to light touch of the right leg; however, straight leg raise was negative and muscle strength and reflexes were within normal limits.  Otherwise, the treatment records, both VA and private, are silent with regard for complaints or diagnosis related to sciatica of the right lower extremity.  The Board notes that a December 2007 statement from one of the Veteran's private physicians states that he had right radiculopathy; however, the available treatment records actually demonstrate he had left radicular/sciatic symptoms as evidenced by evaluation in February 2008 by a pain and rehabilitation center.

Based upon this evidence, the Board finds that the evidence prior to May 19, 2011, establishes that the Veteran's disability picture was consistent with no more than mild impairment of the sciatic nerve.  The Board acknowledges that the words "mild," "moderate," and "moderately severe" are not defined in Diagnostic Code 8520; however, "severe" is modified to include "with marked muscular atrophy."  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decision is "equitable and just."  38 C.F.R. § 4.6.  

The Board notes that the Veteran had no symptoms anywhere near consistent with complete paralysis of the sciatic nerve.  Nor is there any evidence that the Veteran had severe impairment of the sciatic nerve with marked muscular atrophy.  In fact, no atrophy of the right lower extremity is noted in the medical evidence.  Rather, the evidence shows at most there were subjective complaints with intermittent objective findings of no more diminished sensation in the right lower extremity.  
Consequently, the Board finds that it is fair to characterize the Veteran's symptoms as mild based upon the medical evidence of record.  A 10 percent disability rating is the rating most consistent with this finding.  Hence, the Board concludes that the preponderance of the evidence is against finding that a disability rating higher than 10 percent is warranted prior to May 19, 2011. 

As previously discussed, in a March 2012 rating decision (which was issued after the Veteran's death), a 20 percent disability rating was awarded based upon the findings of a VA peripheral nerves examination conducted on May 19, 2011.  A 20 percent rating is consistent with a moderate impairment of the sciatic nerve.  See 38 C.F.R. § 4.124a, Diagnostic Code 8520.  After reviewing the May 2011 VA examination report, the Board concludes that the findings therein do not, however, demonstrate a disability picture that is consistent with a disability rating higher than 20 percent.  The Veteran complained of constant sharp pain in his low back that shot down the lateral right leg with numbness in the right foot.  He reported pain on ambulation, having to use a cane and being able to walk only a limited distance before he had to sit down.  Physical examination was positive for absent ankle jerk reflex and loss of muscle strength and muscle tone.  There was also slight muscle atrophy in the right leg compared to the left.  Sensory examination was, however, within normal limits.  

In comparison with the earlier evidence of record, the Board does find that a worsening in the Veteran's sciatica of the right lower extremity is demonstrated in that it shows he had loss of muscle strength and tone that he did not previously have.  However, his sensation was within normal limits and only the ankle jerk reflex was absent.  Thus there were no objective signs to support the Veteran's report of numbness in the right lower extremity.  In addition, as for the muscle atrophy, other treatment records relating to treatment for the right knee also note the muscle atrophy and relate it to residuals from a fracture of the right tibia and fibula the Veteran sustained in 1979.  The VA examiner did not address the Veteran's right knee problems when examining him.  Hence, the Board finds that the muscle atrophy in the right lower extremity is not related to his sciatica but rather is due to a nonservice-connected disability involving the right lower extremity.  Consequently, the Board finds that the disability picture represented by the May 2011 VA examination is consistent with a moderate impairment of the sciatic nerve or, in other words, a 20 percent disability rating.  

A higher disability rating is not warranted because the VA examination findings failed to demonstrate that there were symptoms rising to the level of a more severe impairment.  In other words, there are no symptoms consistent with loss of active movement below the knee to include the foot or that there was weakened flexion of the knee.  Furthermore, sensation was not impaired and reflexes were present except for ankle jerk.  Hence, the Board does not find the disability picture established is consistent with a moderately severe impairment of the sciatic nerve even though there is evidence of loss of muscle strength and tone.  Consequently, the Board finds that the preponderance of the evidence is against finding that a disability rating higher than 20 percent for sciatic of the right lower extremity is warranted as of May 19, 2011.

The Board acknowledges the Veteran's testimony in August 2008; however, finds that it does not add anything to what is already shown in the medical evidence of record.  As for the appellant's testimony in May 2013, the Board acknowledges her statements that the Veteran's back was a mess and there were days he could not walk and had crutches, a walker and a wheelchair that he used on those days.  The medical evidence, however, fails to support those statements.  At the VA examination in May 2011, which the Board notes was just shortly before his death, the Veteran only reported using a cane for assistance in ambulating due to pain and loss of balance.  It is clear from that examination that there was a worsening in the Veteran's sciatica causing loss of muscle tone and weakness and this was the basis for awarding 20 percent disability ratings for his bilateral sciatica.  There is no evidence showing that the neurological manifestations of the Veteran's low back degenerative joint disease had worsened such that a higher disability rating would be warranted.  Consequently, the Board finds that the appellant's testimony alone is not sufficient to establish that a higher disability rating is warranted.

In conclusion, the Board finds that the preponderance of the evidence is against finding that a disability rating higher than 10 percent is warranted the Veteran's orthopedic manifestations of his service-connected degenerative joint disease of the lumbar spine.  Furthermore, the preponderance of the evidence is against finding that a disability rating higher than 10 percent is warranted for sciatica in either lower extremities prior than May 19, 2011, and that rating higher than 20 percent is warranted thereafter.  The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits.  The claims are, therefore, denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Bilateral Hearing Loss

The Veteran's hearing loss is rated as noncompensable under 38 C.F.R. § 4.85, Diagnostic Code 6100.  VA disability compensation for impaired hearing is derived from the application in sequence of two tables.  See 38 C.F.R. § 4.85(h), Table VI and Table VII.  Table VI correlates the average pure tone sensitivity threshold (derived from the sum of the 1000, 2000, 3000, and 4000 Hertz thresholds divided by four) with the ability to discriminate speech, providing a Roman numeral to represent the correlation.  Each Roman numeral corresponds to a range of thresholds (in decibels) and of speech discriminations (in percentages).  The table is applied separately for each ear to derive the values used in Table VII.  Table VII prescribes the disability rating based on the relationship between the values for each ear derived from Table VI.  The assignment of a rating for hearing loss is achieved by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

On audiological evaluation in June 2004, pure tone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
AVG
RIGHT
10
10
35
45
25
LEFT
10
10
25
40
21.25

Speech audiometry revealed speech recognition ability of 92 percent in both ear.  The Board notes, however, that it is not clear whether the Maryland CNC was used for this test.  Consequently, it is not adequate for rating purposes.  But even if the Board were to accept it, these audiometry test results would not result in a compensable disability rating because the numerical designation in both ears would be I.

The Veteran underwent VA audiology examination in August 2005.  On the audiological evaluation, pure tone thresholds, in decibels, were as follows:





HERTZ



1000
2000
3000
4000
AVG
RIGHT
25
15
40
40
30
LEFT
15
10
40
40
26.25

Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 98 percent in the left ear.  The examiner noted that the Veteran's greatest difficulty was hearing in background noise.  The assessment was mild high frequency hearing loss.  When applying these findings to Table VI, the numeric designation of the Veteran's hearing impairment for each ear is I.  

The Veteran underwent audiology examination in June 2006 in association with being assessed for referral to a Medical Board for being discharged from the National Guard.  On the audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
AVG
RIGHT
15
15
35
45
27.5
LEFT
15
10
25
35
21.25

Speech audiometry revealed speech recognition ability of 100 percent in both ears.  The assessment was high frequency "noise notch" hearing loss bilaterally.  The Board notes, however, that it is not clear that the Maryland CNC was used for this test.  Consequently, it is not adequate for rating purposes.  But even if the Board were to accept it, these audiometry test results would not result in a compensable disability rating because the numerical designation in both ears would be I.

In conclusion, applying the results of the various audiometric results (despite the possible inadequacy in the June 2004 and June 2006 tests), the Board finds that none of the test results would provide a compensable disability rating since, in applying the numeric designation of I in each ear to Table VII, only a zero percent rating would be warranted.  Consequently, the Board finds that the preponderance of the evidence is against finding that a compensable disability rating for the Veteran's service-connected bilateral hearing loss is warranted.  The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits.  The claim is, therefore, denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Left Inguinal Hernia

Service connection was established for residuals of a left inguinal hernia repair in the October 2005 rating decision, which was initially rated as noncompensable effective May 21, 2004.  In a July 2007 rating decision, the RO granted a 10 percent rating, effective the same date as the grant of service connection.  The grant was based on evidence showing that the Veteran purchased a "truss" for his inguinal hernia.
 
Service treatment records appear to indicate that the Veteran had a left inguinal hernia prior to his entry into active duty in February 2003.  (See e.g., November 2002 report of an Annual Medical Review.)  However, a November 2003 note indicates the Veteran was seen for complaints of a left inguinal hernia that "pops" and causes soreness.  A left inguinal hernia was noted to be present on physical examination.  He was referred for possible surgery.  The note of the surgical consultation indicates the Veteran complained of left groin pain for the past month.  He also complained of "popping" in groin with movement.  The pain was constant and intermittently sharp and dull associated with an intermittent bulge and increased with heavy lifting.  Physical examination was positive for a reducible hernia without evidence of guarding, rebound, or incarceration.  The assessment was left inguinal hernia and it was recommended he do no heavy lifting (greater than 10 pounds) for indefinitely and have elective hernia repair.  

Post-service medical records show a note from a private physician appearing to be dated in May 2004 indicates the Veteran has a left indirect inguinal hernia.  The Veteran was initially seen at the VA Medical Center in June 2004.  He gave a past medical history of a left inguinal hernia and physical examination was positive for such.  

The Veteran underwent VA examination in August 2005 at which he stated he first noticed the left inguinal hernia while in Iraq.  He stated he was lifting and unloading a bunch of equipment and had discomfort in that area most of the time.  He felt a popping sensation when having a bowel movement.  He reported that there was a bulge that would come and go.  He did not use a truss or other device.  He did not lift anything to avoid flare ups.  He denied having nausea, vomiting, constipation, diarrhea or fistula.  His weight was not affected.  On physical examination, the presence of a small reducible non-tender left inguinal hernia was noted with valsalva movements.  The impression was small reducible left inguinal hernia.  

An April 2006 receipt shows the Veteran purchased a hernia belt.  A May 2006 note from the same private physician who provided the previous note indicates the Veteran should be on light duty until further notice with no lifting over 30 pounds due to bilateral inguinal hernias.

In June 2006, the Veteran was examined for purposes of determining whether he should be referred for a Medical Board for discharge from the National Guard due to disability.  It is noted that he reported he could not work as a mechanic because his knee prevents him from kneeling and climbing and he could not do ruck marches because of both his back and his knees and that these activities also caused pain at the sites of his hernias.  It was noted he had two inguinal hernias on each side, which he reported he planned to have repaired after retirement.  He reported the left sided hernia was first diagnosed while he was in Iraq.  The right hernia was repaired in September 1999 but he reported it recurred while he was deployed.  The diagnosis was bilateral inguinal hernias.

On initial chiropractor's assessment in November 2006, tenderness was elicited to the areas consistent with inguinal hernia on examination.  In March 2007, the Veteran was seen by a specialist for his left inguinal hernia and he underwent repair of the left inguinal hernia with mesh in May 2007.  Presurgical examination demonstrated a reducible tender left inguinal hernia.  Subsequent treatment records merely indicate the Veteran's history of inguinal hernia, status post repair.

Diagnostic Code 7338 provides criteria for evaluating an inguinal hernia.  38 C.F.R. § 4.114.  A 10 percent rating is assigned for a postoperative recurrent inguinal hernia, which is readily reducible and well supported by truss or belt.  A 30 percent rating is assigned for a small, postoperative recurrent, or unoperated irremediable, inguinal hernia, which is not well supported by truss, or not readily reducible.  A 60 percent rating, which is the maximum rating, is assigned for a large, postoperative, recurrent inguinal hernia, which is not well supported under ordinary conditions and not readily reducible, when considered inoperable.  

Based on the foregoing evidence, the Board concludes that an increased rating is not warranted for the Veteran's service-connected residuals of a left inguinal hernia repair under Diagnostic Code 7338.  In order to warrant a 30 percent rating, the Veteran's hernia must be either postoperative recurrent or unoperated irremediable and not well supported by truss or not readily reducible.  In this case, although the Veteran has a history of surgery to repair the left inguinal hernia, there is no evidence of a postoperative recurrent hernia.  Furthermore, there is no evidence to indicate that the hernia is not well supported by a truss.  The Board acknowledges the Veteran's residual and occasional abdominal pain; however, without the presence of a recurrent hernia, an increased rating is not warranted under Diagnostic Code 7338.  

In conclusion, the Board finds that the preponderance of the evidence is against finding that a disability rating higher than 10 percent is warranted for the Veteran's residuals of left inguinal hernia repair.  The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits.  The claim is, therefore, denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Extraschedular Consideration

The Board has considered whether extraschedular consideration is warranted based on the evidence of functional, including occupational, impairment secondary to the service-connected disabilities discussed herein.  See Barringer v. Peake, 22 Vet. App. 242 (2008).  In evaluating the Veteran's service-connected disabilities, the Board has considered Mittleider v. West, 11 Vet. App. 181 (1998) and attributed all potentially service-connected symptoms to one service-connected condition or another.  

The discussion above reflects that the rating criteria reasonably describes and contemplates the severity and symptomatology of the Veteran's service-connected psychiatric disability.  The Veteran's disability is manifested by impairment in social and occupational functioning and the rating criteria contemplate these impairments.  The symptoms of the Veteran's knee and spine disabilities (pain, tenderness and limitation of motion and neurological) are contemplated by the applicable rating criteria.  The effects of pain and functional impairment have been taken into account and are considered in applying the relevant criteria in the rating schedule.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202.  The rating criteria for hearing loss contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing.  The symptoms associated with the Veteran's bilateral hearing loss (i.e., difficulty hearing and understanding speech) are contemplated by the rating criteria and the medical evidence fails to show anything unique or unusual about the Veteran's bilateral hearing loss that would render the schedular criteria inadequate.  The Veteran's main complaint was reduced hearing acuity in background noise, which is precisely what is contemplated in the rating assigned.  The August 2005 VA examiner specifically noted the Veteran's complaints regarding the effect of hearing loss on occupational function and on daily activities.  See Martinak v. Nicholson, 21 Vet. App. 447 (2007).  There is a higher rating available under the diagnostic code pertaining to inguinal hernia, but the Veteran's disability was not productive of the manifestations that would warrant the higher rating.  The effects of the Veteran's disabilities have been fully considered and are contemplated in the rating schedule; hence, referral for extraschedular ratings is unnecessary at this time.  Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary.  Thun v. Peake, 22 Vet. App. 111 (2008).


ORDER

Entitlement to an initial disability rating of 30 percent for service-connected dysthymic disorder due to chronic pain as a result of service-connected disabilities from May 21, 2004 until January 1, 2011, is granted, subject to controlling regulations governing the payment of monetary benefits.

Entitlement to an initial disability rating in excess of 10 percent for service-connected bursitis, right knee, is denied.

Entitlement to an initial disability rating in excess of 10 percent for service-connected bursitis, left knee, is denied.

Entitlement to an initial disability rating in excess of 10 percent for service-connected degenerative joint disease, lumbar spine, is denied.

Entitlement to an initial disability rating in excess of 10 percent for service-connected sciatica, left lower extremity, prior to May 19, 2011; and in excess of 20 percent thereafter, is denied.

Entitlement to an initial disability rating in excess of 10 percent for service-connected sciatica, right lower extremity, prior to May 19, 2011; and in excess of 20 percent thereafter, is denied.    

Entitlement to an initial compensable disability rating for service-connected bilateral hearing loss is denied. 

Entitlement to an initial disability rating in excess of 10 percent for service-connected residuals of left inguinal hernia repair is denied.


REMAND

Remand of the claim for service connection for residuals, post-operative right inguinal hernia, is warranted for additional development as the necessary records from the West Virginia National Guard setting forth the Veteran's actual periods of inactive duty for training and active duty for training during the relevant period have not been received.  The Veteran gave testimony at a February 2008 RO hearing that he incurred the right inguinal hernia during a weekend drill when he "had to change out fifty-five gallon drums of oil."  In contrast, at the May 2013 Board hearing, the appellant testified that he incurred the right inguinal hernia from lifting a tire although it is unclear whether this was during any type of duty with the National Guard or during performance of his civilian job duties (which happened to be the same as his National Guard).

The timeframe of when this injury was incurred, however, is not clear.  The Veteran testified at the February 2008 RO hearing that it occurred in either 1988 or 1989.  On the other hand, the Veteran testified that the right inguinal hernia occurred after he injured his foot, and private treatment records show he injured his right foot/heel in June 1997.  In addition, the treatment records for the right inguinal hernia from August and September of 1999 indicate a reported history of injury three years prior, which would place the injury in approximately 1996.  Given these various reports, the Board finds that the most likely timeframe of the injury would have been between 1996 and 1999 rather than the earlier time the Veteran gave at the February 2008 hearing.  

Furthermore, the Board notes that the Veteran admitted at the February 2008 hearing that he did not report the injury to the National Guard at the time but sought treatment from his own personal physician, which would explain why there are no service records showing an injury or treatment for this condition; however, he stated they knew about the hernia because he was on "like a profile work, I didn't have to run PT or do sit ups.  They put me on a temporary profile."  The Board notes that the available service treatment records from the National Guard do not demonstrate the Veteran was on profile as a result of the hernia.  However, the Board further notes, as the Veteran acknowledged, that he was a federal civilian employee, as well as a member, of the West Virginia National Guard, and performed the same work for both.  Consequently, the Board believes there may be federal civilian employment records relating to the onset of the right inguinal hernia that should be sought on remand.

As for the claim for entitlement to a TDIU, as discussed in the Introduction, the Board finds that the record raises the question of whether the Veteran was unable to obtain or sustain substantially gainful employment because of his service-connected disabilities.  Initially, the Board notes that the RO has not adjudicated this aspect of the Veteran's claims for increased ratings in the first instance.  Consequently, the Board must remand for appropriate action by the RO to include the following.

Notice of how to establish entitlement to a TDIU was not provided to the Veteran and has not been provided to the appellant.  Such should be provided to the appellant on remand.

In addition, the Board notes that the Veteran had reported that he retired from his federal civilian employment sometime in early 2007 because of his service-connected disabilities although the exact date of his retirement is unclear.  Thus on remand, the Department of Labor and/or the West Virginia National Guard should be contacted and requested to provide any documentation relating to the Veteran's retirement from federal civilian employment.  

Finally, the Board notes that it appears that the Veteran also underwent a Medical Board evaluation for disability discharge from the National Guard in or around 2007.  The claims file contains a June 2006 physical examination that was conducted to determine whether the Veteran should be referred for a Medical Board evaluation, which was conducted at NNMC in Bethesda, Maryland.  The paperwork related to any Medical Board evaluation and the Veteran's discharge from the National Guard are not, however, part of the service records in the claims file.  On remand, the West Virginia National Guard should be contacted and asked to provide such records.

As for entitlement to special monthly compensation prior to May 19, 2011, as discussed in the Introduction, the Board finds that this issue is inextricably intertwined with the issue of entitlement to a TDIU because the outcome of the determination on that issue may result in entitlement to special monthly compensation earlier than what has already been established.  Consequently, that issue is remanded to be readjudicated after development and adjudication of the TDIU claim has been accomplished.

Accordingly, the case is REMANDED for the following action:

1.  Provide the appellant with appropriate notice to establish entitlement to a TDIU, including on an extraschedular basis.

2.  Contact the Adjutant General's Office of the West Virginia Army National Guard and request that it provide the followings:
   a)  documentation of all periods of inactive duty for training and active duty for training during for the period of 1996 through 1999.  Such documentation must specify the dates for each period of training and what type of training was performed.  
   b)  the report of any Medical Board evaluating the Veteran as unfit due to disability for continued service in the West Virginia Army National Guard.
   c)  the Veteran's discharge documents relating to his discharge from the West Virginia Army National Guard.

A negative reply should be provided if any of the request documents cannot be provided explaining why such information is not available.

3.  Contact the Human Resources Office of the West Virginia National Guard, or any other appropriate agency or department, and request it provide a copy of the Veteran's federal civilian employment record, to include any occupational health records and retirement records, related to the Veteran's civilian employment with the West Virginia National Guard.  A negative reply should be provided if such information is not available with an explanation as to why.

4.  If documentation relating to the Veteran's retirement is not available from the West Virginia Army National Guard, contact the Department of Labor and request it provide a copy of any records relating to the Veteran's retirement in 2007 from federal civilian employment.  A negative reply should be provided if such information is not available with an explanation as to why.

5.  Thereafter, the claims for service connection for a postoperative right inguinal hernia, entitlement to a TDIU and entitlement to special monthly compensation at the housebound rate prior to May 19, 2011, should be readjudicated.  If any benefit sought on appeal remains denied, a Supplemental Statement of the Case should be issued to the appellant and her representative.  An appropriate period of time should be allowed for response.  Thereafter, these claims should be returned to this Board for further appellate review, if in order.  

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the 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).




______________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs