Citation Nr: 1342321 Decision Date: 12/20/13 Archive Date: 12/31/13 DOCKET NO. 10-01 617 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts THE ISSUES 1. Entitlement to a schedular rating in excess of 20 percent for cervical spine disability (characterized as spondylosis), prior to January 7, 2013. 2. Entitlement to a schedular rating in excess of 40 percent for cervical spine disability (characterized as intervertebral disc syndrome (IVDS), from January 7, 2013. 3. Entitlement to ratings for cervical spine disability in excess of 20 percent and 40 percent, on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b)(1). 4. Entitlement to an increased (compensable) schedular rating for bilateral hearing loss. 5. Entitlement to a compensable rating for bilateral hearing loss on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b)(1). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran served on active duty from March 1971 to March 1991. This appeal to the Board of Veterans' Appeals (Board) arose from an April 2009 rating decision in which the RO declined to reopen a claim for service connection for Morton's neuroma of the left foot, as well as denied a rating in excess of 20 percent for cervical spine disability, and a compensable rating for bilateral hearing loss. In July 2009, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in November 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in January 2010. In August 2011, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of the hearing is of record. During the hearing, the undersigned Veterans Law Judge granted the Veteran's motion to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2011). In October 2012, the Board remanded the claims on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After completing the requested development, the RO/AMC continued to deny reopening the claim for service connection for Morton's neuroma of the left foot and continued to deny increased ratings for cervical spine disability and bilateral hearing loss as reflected in an August 2012 supplemental SOC (SSOC), and returned these matters to the Board for further consideration. In November 2012, the Board reopened the Veteran's claim of service connection for Morton's neuroma of the left foot, expanded the claim for higher rating for bilateral hearing loss to include extra-schedular consideration, and remanded the reopened claim , along with the higher rating claims to the RO, via the AMC, for further action, to include additional development of the evidence. After accomplishing further action, in a July 2013 rating decision, the RO/AMC granted the Veteran service connection for left Morton's neuroma and assigned an initial 10 percent rating, effective October 20, 2008; this action resolved the claim for service connection, and the Veteran has not appealed the assigned rating or effective date. Also in July 2013, the RO/AMC recharacterized the cervical spine disability as IVDS, and assigned a 40 percent rating, from January 7, 2013 (the date of a VA examination). The RO/AMC continued to deny higher ratings for cervical spine disability, prior to January 7, 2013, and for bilateral hearing loss (as reflected in a July 2013 supplemental SOC (SSOC)), and returned these matters to the Board for further consideration. As regards current characterization of the appeal, the Board notes that, although the RO/AMC granted a higher rating for the cervical spine disability from January 7, 201, inasmuch as a higher rating is available for the disability before and after that date, and the Veteran is presumed to seek the maximum available benefit for a disability the Board has characterized the appeal as to the cervical spine as now encompassing the matters set forth in items 1 through 3 on the title page. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) ; AB v. Brown, 6 Vet. App. 35, 38 (1993). For reasons made clear, below, the Board has also bifurcated the rating claims to reflect schedular and extra-schedular consideration (as reflected on the title page). A review of the Virtual VA paperless claims processing system reveals additional VA treatment records; however, they have been reviewed by the RO in the August 2012 and July 2013 SSOCs and by the Board. The Board's decision on the claims for higher, schedular ratings for cervical spine disability and for bilateral hearing loss is set forth below. The claims for higher, extra-schedular ratings for ratings for bilateral hearing loss, each on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b)(1)m are addressed in the remand following the order; these matters are being remanded to the RO, via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each matter herein decided have been accomplished. 2. Prior to January 7, 2013, the Veteran's cervical spine disability was primarily manifested by complaints of pain with forward flexion greater than 30 degrees; the weight of the competent medical evidence indicates that the Veteran did not have any separately compensable neurological manifestations, and there is no evidence of incapacitating episodes of IVDS having a total duration of at least 4 weeks during a 12-month period. 3. As of January 7, 2013, the Veteran's cervical spine disability was manifested by IVDS having a total duration of at least 4 weeks during a 12-month period the weight of the competent medical evidence indicates that the Veteran did not have unfavorable ankylosis of the entire spine, separately compensable neurological manifestations for which service connection has not already been established, and there is no evidence of incapacitating episodes of intervertebral disc syndrome having a total duration of at least 6 weeks during a 12-month period. 4. Pertinent to the October 2008 claim for increase, audiometric testing has revealed no worse than Level III hearing in the right ear and Level II hearing in the left ear. CONCLUSIONS OF LAW 1. Prior to January 7, 2013, the criteria for a schedular rating in excess of 20 percent for cervical spine disability are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, General Rating Formula for Diseases and Injuries of the Spine, and Formula for Rating Intervertebral Disc Disease on the Basis of Incapacitating Episodes (2013). 2. Since January 7, 2013, the criteria for a schedular rating in excess of 40 percent for cervical spine disability are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, General Rating Formula for Diseases and Injuries of the Spine, and Formula for Rating Intervertebral Disc Disease on the Basis of Incapacitating Episodes (2013). 3. The criteria for a schedular , compensable rating for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159 , 3.385, 4.1, 4.2, 4.7, 4.85 (Diagnostic Code 6100) and 4.86 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, and 3.326(a) (2013). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claims, as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) ). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1) . The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 -23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, the SOC set forth the criteria for higher ratings for each disability under consideration, (the timing and form of which suffices, in part, for Dingess/Hartman). In this appeal, in a November 2008 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for an increased rating for the service-connected cervical spine and service-connected bilateral hearing loss, what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA; this letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations. The April 2009 rating decision reflects the initial adjudication of the claim after issuance of this letter. Hence, the November 2008 letter-which meets the content of notice requirements described in Dingess/Hartman and Pelegrini-also meets the VCAA's timing of notice requirement. The Veteran was also sent additional letters in November 2011, August 2009, and November 2012; these letters, as well as the November 2008 letter, provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided. Pertinent medical evidence associated with the claims file consists of service, VA and private treatment records, and the reports of February 2009 and January 2013 VA examinations. Also of record and considered in connection with the appeal are various written statements provided by the Veteran and by his representative on his behalf. The Board has remanded the Veteran's claims for further development in October 2011 and November 2012. In October 2011 the Board remanded in order to obtain outstanding treatment records for the Veteran's service-connected cervical spine disability and to develop the Veteran's claim of entitlement to an increased rating for service-connected bilateral hearing loss on an extra-schedular basis which will be discussed herein below in the Remand section. The Veteran's VA treatment records have been added to the Veteran's claims file, as noted in the August 2012 and July 2013 SSOCs. In November 2012, the Board remanded the claims for the Veteran to be afforded VA examinations for both his service-connected cervical spine disability and service-connected bilateral hearing loss; as discussed below the Veteran was afforded VA examinations in July 2013. As the requested development has been completed, no further action to ensure compliance with the remand directives is required. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Here, the February 2009 and January 2013 VA examiners thoroughly assessed the current manifestations of the Veteran's service-connected disabilities and the reports provide the medical information needed to address the rating criteria relevant to the Veteran's claims. The applicable and appropriate history was recorded and there is no showing that the examination reports provide a substantially different picture of the Veteran's disabilities than that reflected in the evidence in the claims file. All appropriate testing needed to assess the current status of the Veteran's each disability was accomplished, and all subjective and objective symptomatology was described and reported. Moreover, the medical examiner's clinical findings were factually accurate and fully articulated, and valid medical analyses were applied in assessing the Veteran's present level of impairment. See Nieves, 22 Vet. App. at 304. The Board thus finds that the February 2009 and January 2013 examination reports are adequate for schedular consideration, and that, on these facts, no further examination in connection with either disability is needed. As for the Board hearing, in Bryant v Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103 (c)(2) requires that the individual (interpreted include a Veterans Law Judge (VLJ)) who chairs a hearing must fulfill two duties: (1) to fully explain the issues and (2) suggest the submission of evidence that may have been overlooked. Here, during the August 2011 hearing, the undersigned Veterans Law Judge identified the issues on appeal, and elicited pertinent testimony concerning the nature and severity of, and treatment for, the Veteran's cervical spine disability and bilateral hearing loss. The hearing transcript also reflects appropriate exchanges between the Veteran, his representative, and the undersigned Veterans Law Judge pertaining to the Veteran's service-connected disabilities and the bases for denial of the claims. While the submission of specific, additional evidence was not explicitly suggested, additional development was accomplished after the hearing; hence, any omission is this regard was harmless. As such, the Board finds that the requirements of 38 C.F.R. 3.103(c)(2) have been met, and that the hearing was legally sufficient. In summary, the duties imposed by the VCAA have been considered and satisfied. The Veteran has been notified and made aware of the evidence needed to substantiate the claims herein decided, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with any claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters herein decided, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc ., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Cervical Spine Disability Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Historically, in April 1992, the RO granted service connection for cervical spine disability (then characterized as cervical spine spondylosis), and assigned an initial 20 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5290-5293, effective April 1, 1991. In October 2008, the Veteran filed a claim for an increased rating, and, in the April 2009 rating decision on appeal, the RO continued the 20 percent rating, pursuant to the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5290-5293. During the pendency of the appeal, in a July 2013 rating decision, the RO recharacterized the Veteran's disability as IVDS of the cervical spine and assigned a 40 percent disability rating effective January 7, 2013, under 38 C.F.R. § 4.71a, Diagnostic Code 5243. In this case, the RO has already assigned staged, schedular ratings for the Veteran's cervical spine disability-20 percent prior to January 7, 2013, and 40 percent from January 7, 2013. Hence, the Board will consider the propriety of the rating assigned at each stage, as well as whether any further staged rating, pursuant to Hart, is warranted. The Board notes that, effective September 26, 2003, the criteria for rating disabilities of the spine were revised. See 68 Fed. Reg. 51454 -51458 (Aug. 27, 2003). As the present appeal arose from the Veteran's October 2008 claim for increase, only the criteria in effect as of September 26, 2003 are applicable in this appeal. The General Rating Formula for Diseases and Injuries of the Spine provides for assignment of a 10 percent rating for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or a vertebral body fracture with loss of 50 percent or more of height. A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; a combined range of motion of the cervical spine not greater than 170 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 30 percent rating is assigned in cases of forward flexion of the cervical spine of 15 degrees or less, or favorable ankylosis of the entire cervical spine. A 40 percent rating is in order for unfavorable ankylosis of the entire cervical spine. A 100 percent rating contemplates unfavorable ankylosis of the entire spine. The "combined range of motion" refers to the sum of forward flexion, extension, left and right lateral flexion, and left and right rotation. 38 C.F.R. § 4.71a (Plate V) indicates that normal range of motion of the thoracolumbar spine encompasses flexion to 90 degrees and extension, bilateral lateral flexion, and bilateral rotation to 30 degrees. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. In addition, the Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. The Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes provides a 10 percent disability rating for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. For purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The Board also notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2013); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Pertinent to the current claim for increase, a July 2008 VA treatment note indicates that the Veteran could not move his neck for the past month but was doing better that he was now on medication. In December 2008, the Veteran was afforded a VA contract examination; he then reported constant pain that traveled to the shoulders. Sometimes pain was elicited on spontaneous activity. His range of motion on flexion was to 45 degrees and his range of motion on extension was to 15 degrees; there was no evidence of ankylosis. The joint function of the spine was additionally limited after repetitive use by pain, fatigue, weakness, lack of endurance, and incoordination; however, there was no additional limitation of motion. He had difficulty with lifting his arms and pain with lifting, driving, and typing. There were no episodes of incapacitation or intervertebral disc syndrome; there was also no tenderness or radiation of pain. His motor and sensory function was within normal limits. The Veteran was afforded a VA examination in February 2009. His range of motion on flexion was from 0 degrees to 25 degrees and on extension it was from 0 degrees to 15 degrees; there was no objective evidence of pain following repetitive motion. There was no evidence of fatigue, weakness, or spasms but there was evidence of decreased motion, stiffness, and a dull pain. He did not have any radiation of pain, urinary incontinence, or intervertebral disc syndrome. The examiner noted that there were no significant effects on his employment. A February 2011 VA treatment note indicates that the Veteran had a recent fall and now had limited range of motion of the cervical spine. An August 2011 VA treatment record stated that the Veteran's range of motion for his cervical spine was to 35 degrees and non tender. It was noted that he had limited range of motion of his neck with a history of cervical spondylosis. On January 2013 VA examination, the Veteran's range of motion on flexion was to 20 degrees, with pain at 20 degrees, and extension was to 10 degrees. The examiner noted that there was additional function loss and additional limitation of motion after repetitive use; there was also functional loss and functional impairment, less movement, weakened movement, excess fatigability, pain on movement, tenderness, muscle spasm, and interference with sitting, standing, and/or weight bearing. He had flare-ups that impacted the function of his cervical spine and incapacitating episodes due to his neck pain. These flare-ups required him to take off from work for bed rest and only rising for toileting and meals; his most recent flare-up was in October 2012. He required more than 4 weeks but less than 6 weeks of doctor prescribed bed rest. Reportedly, his cervical spine disability impacted his ability to work; he had to change his posture, unable to lift files, he had a stiff neck when at the computer, and wore a soft collar when he drove that limited his ability to turn his neck. Considering the evidence in light of the applicable legal authority, the Board finds that the evidence of record does not support assignment of any higher rating for service-connected cervical spine disabilility at any point pertinent to this appeal. At the outset, the Board notes that at no point does the medical or lay evidence of record reflect that the Veteran has any neurological manifestation of cervical spine disability, much less any separately ratable manifestations. Hence, the provisions of Note 1 of the General Rating Formula need not be addressed further. A. Prior to January 7, 2013 For the period prior to January 7, 2013, pertinent evidence provides no basis for assignment of more than a 20 percent rating for the Veteran's cervical spine disability under the General Rating Formula. For this period, the Veteran's cervical spine disability (then characterized as spondylosis) has not been manifested by forward flexion of the cervical spine to 15 degrees or less, or favorable ankylosis of the entire cervical spine. While the Veteran had trouble in July 2008 moving his neck he was able to move it once he was on medication and in December 2008 his range of motion was to 45 degrees. On VA examination in February 2009, his range of motion for flexion was 25 degrees. In February 2011 it was noted that his range of motion was limited but that was because of a recent fall and in August 2011 his range of motion was to 35 degrees. Thus, there is no evidence that the Veteran's range of motion was limited to 15 degrees or less. Moreover, since the Veteran did some have range of motion, there is no actual evidence of any ankylosis. Therefore, the Board finds that, for the period prior to January 7, 2013, the Veteran's cervical spine disability does not warrant a higher rating under the General Rating Formula. The Board also notes that the Formula for Rating IVDS likewise provides no basis for assignment of a rating in excess of 20 for the period in question. The December 2008 examiner explicitly found no IVDS, and the cervical spine disability has only recently been characterized as involving IVDS. Moreover, to whatever extent there may have been some cervical spine disc impairment at some point during the period prior to January 7, 2013, the criteria for a rating in excess of 20 percent are not met, To warrant a higher rating of 40 percent, there would have to be evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Here, however, the February 2009 VA examiner stated that the Veteran did not have any incapacitating episodes. The July 2013 VA examiner stated that the Veteran had an episode in October(presumably, October 2012), however, this appears to have been a reiteration of the Veteran's own reported history, as there simply is no documented evidence of physician-ordered bed rest during the period in question. Further, even if this reference was deemed to constitute valid evidence of an incapacitating episode, one such episode in the 12-month period prior to the July 2013 examination clearly does not meet the requirements noted above. In reaching the above-noted conclusions, the Board has, consistent with DeLuca, considered the Veteran's functional loss due to pain and other factors set forth in 38 C.F.R. §§ 4.40 and 4.45; however, the pertinent medical evidence reflects that the assigned 20 percent, schedular rating properly compensates the Veteran for the extent of any such loss during the period in question. In this regard, in both December 2008 and February 2009, there was pain with motion after repetitive motion but there was no additional limitation of motion. In December 2008, the joint function was additionally found to be limited by fatigue, weakness, a lack of endurance, or incoordination after repetitive use; however, there was no additional limitation of motion. In February 2009, there was no evidence of fatigue, weakness, or spasms and there was no additional limitation in degrees for range of motion noted following repetitive testing. Thus, there is no medical evidence that the Veteran's pain or incoordination was so disabling as to effectively result in flexion limited to 15 degrees or less, or favorable ankylosis of the entire cervical spine, as required for assignment of the next higher rating under the General Rating Formula. The Board points out, moreover, that the criteria under the General Rating Formula are to be applied with or without symptoms of pain (whether or not it radiates), aching or stiffness in the area of the spine involved. See 38 C.F.R. § 4.71a). As a final point, the Board notes that, the oral and written assertions of the Veteran and his representative have been considered. However, the Board finds that the lay assertions made in support of his claim for a higher schedular rating are not entitled to more weight than the objective findings rendered by trained medical professionals in evaluating the Veteran's cervical spine disability. 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). See also Bostain v. West, 11 Vet. App. 124, 127 (1998). The Board has fully considered the statements from the Veteran regarding his symptomatology; however, as indicated above, competent, persuasive evidence indicates that the Veteran's cervical spine disability warrants no more than the 20 percent rating for the period in question. For all the foregoing reasons, the Board finds that there is no basis for any staged rating for the period prior to January 7, 2013, pursuant to Hart, and that the claim for schedular rating in excess of 20 percent for the cervical spine disability for this period must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). B. Since January 7, 2013 As of the date of the January 2013 VA examination, medical evidence confirmed the diagnosis of IVDS, and a worsened disability picture, for which a 40 percent rating was assigned. However, no higher rating for the cervical spine disability, under either the General Formula, or the Formula for Rating IVDS, is assignable. Pursuant to the General Rating Formula, since January 7, 2013, there has been no evidence that the Veteran's cervical spine disability is manifested by unfavorable ankylosis of the entire spine. During the Veteran's January 2013 VA examination, his range of motion on flexion was to 25 degrees; thus, there is no evidence of immobility, ankylosis. Therefore, since there is no evidence of unfavorable ankylosis of the entire spine, the Veteran does not warrant an increased, schedular rating under the General Rating Formula. A higher rating also is not warranted under the Formula for Rating IVDS based on incapacitating episodes. To warrant a higher rating of 60 percent under that formula, there would have to be evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. However, the January 2013 VA examiner assessed the Veteran's incapacitating episodes at a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, and there is otherwise no . As such, the Board finds that the criteria for a schedular rating in excess of 40 percent under this formula likewise are not met. See 38 C.F.R. § 4.71a, In reaching the above-noted conclusions, the Board has, consistent with DeLuca, considered the Veteran's functional loss due pain and other factors set forth in 38 C.F.R. §§ 4.40 and 4.45; however, the pertinent medical evidence reflects that the assigned 40 percent, schedular rating properly compensates the Veteran for the extent of any such loss during the period in question. In this regard, on VA examination in January 2013, while there was pain with motion, the joint function was not additionally limited by pain after repetitive use. The joint function was not additionally found to be limited by fatigue, weakness, a lack of endurance, or incoordination after repetitive use. There was no additional limitation in degrees for range of motion noted following repetitive testing. There is otherwise no competent, persuasive evidence suggesting a more severe disability picture. Thus, there is no medical evidence indicating that the Veteran's pain or incoordination has been so disabling as to effectively result in flexion manifested by unfavorable ankylosis of the entire spine, as required for assignment of the next higher rating under the General Rating Formula. Further, as indicated above, the criteria under the General Rating Formula are to be applied with or without symptoms of pain (whether or not it radiates), aching or stiffness in the area of the spine involved. See 38 C.F.R. § 4.71a. As a final point, the Board again notes that the oral and written assertions of the Veteran and his representative have been considered. However, for the same reasons as those noted above, the Board finds that the lay assertions made in support of the Veteran's claim for a higher schedular rating for the period in question are not entitled to more weight than the objective findings rendered by trained medical professionals in evaluating the Veteran's cervical spine disability. See 38 C.F.R. § 3.159(a)(1); Bostain v, 11 Vet. App. at 127.. For all the foregoing reasons, the Board finds that there is no basis for stated rating for the period from January 7, 2013, pursuant to Hart, and that the claim for a schedular rating in excess of 40 percent for the cervical spine disability must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53-56. B. Bilateral Hearing Loss Historically, in April 1992, the RO granted service-connection for bilateral hearing loss, and assigned an initial 0 percent (noncompensable) rating ,effective April 1, 1991. In October 2008, the Veteran filed a claim for an increased rating and, in the April 2009 rating decision (the subject of this appeal), the RO continued the Veteran's noncompensable rating, pursuant to the provisions of 38 C.F.R. § 4.85, Diagnostic Code 6100. Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examination. Evaluations of hearing impairment range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000; 2,000; 3,000; and 4,000 cycles per second. To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. Exceptional patterns of hearing impairment are addressed in 38 C.F.R. § 4.86. When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). The Veteran was afforded a VA audiology consult in February 2009. On audiometric testing, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 AVG. RIGHT N/A 30 35 65 65 49 LEFT N/A 10 45 60 60 44 Pure tone threshold averages were 49 decibels (dB) in the right ear and 44 dB in the left ear. Speech discrimination scores were 80 percent in the right ear and 88 percent in the left ear. The examiner diagnosed the Veteran with normal to moderately severe hearing loss bilaterally. In September 2010 the Veteran had a VA audiology consult. On audiometric testing, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 AVG. RIGHT N/A 10 45 65 70 48 LEFT N/A 5 50 60 65 45 Pure tone threshold averages were 48 dB in the right ear and 45 dB in the left ear. Speech discrimination scores were 100 percent in the right ear and 94 percent in the left ear. The audiologist stated that the Veteran had hearing aids since 2006 but never found them helpful. For the right ear, the Veteran was diagnosed with hearing in the normal limits through 1500 Hertz and moderate-severe high frequency sensorineural hearing loss and the Veteran's left ear was within normal limits through 1500 Hertz and mild-severe high frequency sensorineural hearing loss. He had excellent speech ability. It was noted that his hearing was unchanged since 2009. The Veteran was afforded a VA audiological evaluation in January 2013. On audiometric testing, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 AVG. RIGHT N/A 30 40 65 80 54 LEFT N/A 15 50 60 65 48 Pure tone threshold averages were 54 dB in the right ear and 48 dB in the left ear. Speech discrimination scores were 94 percent in the right ear and 94 percent in the left ear. The examiner diagnosed sensorineural hearing loss bilaterally. Applying the method for evaluating hearing loss to the results of the Veteran's audiological evaluations, the pure tone threshold averages on audiological testing in February 2009, when applied to Table VIA, reveal Level III hearing in the right ear and Level II hearing in the left ear. Combining Level III hearing for the right ear and Level II hearing for the left ear according to Table VII reveals a noncompensable rating. 38 C.F.R. § 4.85, Diagnostic Code 6100. The pure tone threshold averages on audiological testing in September 2010, when applied to Table VIA, reveal Level I hearing in the right ear and Level I hearing in the left ear. Combining Level I hearing for the right ear and Level I hearing for the left ear according to Table VII reveals a noncompensable rating. 38 C.F.R. § 4.85, Diagnostic Code 6100. The pure tone threshold averages on audiological testing in January 2013, when applied to Table VIA, reveal Level I hearing in the right ear and Level I hearing in the left ear. Combining Level I hearing for the right ear and Level I hearing for the left ear according to Table VII reveals a noncompensable rating. 38 C.F.R. § 4.85, Diagnostic Code 6100. Because these results do not reveal an exceptional pattern of hearing loss in either ear, Table VIA is not for application. See 38 C.F.R. § 4.86. The Board emphasizes that the assignment of schedular disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Hence, the Board has no discretion in these matters and must predicate its determination on the basis of the results of the audiology studies of record. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). In other words, the Board is bound by law to apply VA's rating schedule based on the Veteran's audiometry results. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. For all the foregoing reasons, there is no basis for staged, schedular rating of the Veteran's bilateral hearing loss, pursuant to Hart, and the claim for a higher schedular rating must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, given the mechanical method of deriving schedular ratings for hearing loss, that doctrine is not for application with respect to this claim. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App at 53-56. ORDER A schedular rating in excess of 20 percent for service-connected cervical spine disability, prior to January 7, 2013,is denied. A rating in excess of 40 percent for service-connected cervical spine disability, from January 7, 2013, is denied. An increased (compensable), schedular rating for service-connected bilateral hearing loss is denied. REMAND Unfortunately the Board finds that further RO action on the matters of the Veteran's entitlement to higher, extra-schedular ratings for both the Veteran's cervical spine disability and his bilateral hearing loss is warranted, even though such will, regrettably, further delay an appellate decision on these matters. The Board notes that determination of whether a claimant is entitled to an extra-schedular rating under § 3.321(b) is a three step inquiry. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If the RO or Board determines that (1) the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and (2) the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then (3) the case must be referred to an authorized official to determine whether, to accord justice, an extra-schedular rating is warranted. Id. The Board finds that there is an indication that the Veteran's cervical spine disability might markedly interfere with his employment. A December 2009 medical record reflects that the Veteran had difficulty with lifting his arms, driving, and typing. In February 2009, the VA examiner stated that there were significant effects on the Veteran's employment and at the January 2013 VA examination it was stated that the Veteran's cervical spine disability impacted his ability to work; he had to change postures, could not lift files, had a stiff neck when at the computer, and the ability to turn his neck was limited when he drove. Although the above-cited evidence appears to raise a question as to whether any higher rating for his cervical spine disability, on an extra-schedular basis, is warranted, the RO has not considered such a question. Hence, a remand of this matter for RO consideration, in the first instance, is warranted. Also, in the October 2011 remand, the Board found that evidence of record appeared to raise a question of whether a higher rating for bilateral hearing loss on an extra-schedular basis was warranted and since the RO had not considered such a question the Board remanded in order for the RO to consider it in the first instance. In November The Board again remanded again in November 2012 in order for the Veteran to be afforded a VA examination; which was conducted in January 2013. In a March 2013 memorandum, the Acting Chief of Compensation found that the Veteran was not entitled to an extra-schedular rating for bilateral hearing loss under 38 C.F.R. § 3.321(b). In the decision, it was stated that "The Veteran has not been hospitalized for any extended periods of time due to his hearing loss. He has not had any surgery. The totality of the evidence does not support the contention that the Veteran's service-connected bilateral hearing loss is so exceptional or unusual, as to render the use of the regular rating schedule standards impractical." The Board notes that the Veteran has asserted that his bilateral hearing loss negatively impacts his life and occupational functioning because he has difficulty hearing people speaking, must read lips to understand what others are saying, and must be talking with someone face-to-face in order to hear what they are saying. The February 2009 VA examiner noted that the Veteran's bilateral hearing loss had significant effects on his occupation. In particular, he found that the Veteran would have difficulty hearing in noisy environments, on the phone, or if not facing the person speaking. He noted that the Veteran had very high subjective difficulty hearing. The January 2013 VA examiner stated that the Veteran's bilateral hearing loss affected his ability to work because he had difficulty hearing at work and in meetings. Although in the March 2013 memorandum, it was pointed out that the Veteran had not been hospitalized for bilateral hearing loss (suggesting that the schedular criteria for evaluating the disability were deemed inadequate), notably, whether the Veteran's hearing loss resulted in marked interference with employment was not addressed. For the reasons noted above, the Board finds that, on remand, the RO should again refer to VA's Director of Compensation and Pension the claim for service connection for bilateral hearing loss, as well as initially refer the claim for higher ratings for cervical spine disability, for extra-schedular consideration, prior to adjudicating those matters. Consideration of these matters should encompass all pertinent medical and lay evidence, to include that cited above. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the remaining claims on appeal. Accordingly, these matters are hereby REMANDED for the following action: 1. Refer the matter of the Veteran's entitlement to higher ratings for service-connected cervical spine disability to the Director of Compensation and Pension Service, pursuant to the provisions of 38 C.F.R. § 3.321(b), for consideration of whether any extra-schedular rating(s) is/are warranted. Specific discussion of whether the schedular criteria are adequate to rate the disability, and, if not, whether there is evidence of any marked interference with employment, in light of all pertinent lay and medical evidence, should be requested. 2. Again refer the matter of the Veteran's entitlement to a compensable rating for service-connected bilateral hearing loss to the Director of Compensation and Pension Service, pursuant to the provisions of 38 C.F.R. § 3.321(b), for consideration of whether an extra-schedular rating is warranted. Specific discussion of whether the schedular criteria are adequate to rate the disability, and, if not, whether there is evidence of any marked interference with employment, in light of all pertinent lay and medical evidence, should be requested. 3. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After completing the requested action, and any additional notification and/or development deemed warranted, adjudicate the claims for higher ratings for cervical spine disability and for bilateral hearing loss, each on an extra-schedular basis pursuant to 38 C.F.R. §3.321(b)(1), in light of all pertinent evidence and legal authority. 5. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SSOC that includes citation to and discussion of 38 C.F.R. § 3.321(b)(1) and Thun, along with clear reasons and bases for all determinations, and afford them appropriate opportunity to respond before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). The RO/AMC is reminded that this appeal has been advanced on the Board's docket. ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs