Citation Nr: 1545307	
Decision Date: 10/23/15    Archive Date: 10/29/15

DOCKET NO.  09-17 803	)	DATE
	)
	)

Received from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to an initial rating greater than 10 percent for left knee chondromalacia.

2.  Entitlement to an initial rating greater than 10 percent for a lumbosacral spine disability.

3.  Entitlement to an initial compensable rating for left ear hearing loss.

4.  Entitlement to an initial rating greater than 10 percent for a cervical spine disability.

5.  Entitlement to an initial rating greater than 10 percent for right knee chondromalacia.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Michael T. Osborne, Counsel


INTRODUCTION

The Veteran had active service from May 2004 to December 2007, including in combat in Afghanistan in support of Operation Enduring Freedom.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which granted, in pertinent part, the Veteran's claims of service connection for left knee chondromalacia, assigning a zero percent rating effective December 9, 2007, a lumbosacral spine disability (which was characterized as lumbar spondylosis with thoracolumbar strain), assigning a 10 percent rating effective December 9, 2007, left ear hearing loss, assigning  zero percent (non-compensable) rating effective December 9, 2007, a cervical spine disability (which was characterized as cervical spondylosis), assigning a zero percent (non-compensable) rating effective December 9, 2007, and for right knee chondromalacia, assigning a zero percent (non-compensable) rating effective December 9, 2007.  The Veteran disagreed with this decision in June 2008.  He perfected a timely appeal in March 2009.  Having reviewed the record evidence, the Board finds that the issues on appeal are characterized more appropriately as stated on the title page of this decision.

The Veteran currently lives within the jurisdiction of the RO in St. Petersburg, Florida.  As such, that facility has jurisdiction in this appeal.

In a March 2009 rating decision, the RO in St. Petersburg, Florida, assigned separate higher initial 10 percent ratings effective December 9, 2007, for the Veteran's service-connected left knee chondromalacia and right knee chondromalacia.  Because the initial ratings assigned to the Veteran's service-connected left knee chondromalacia and right knee chondromalacia are not the maximum ratings available for this disability, these claims remain in appellate status.  See AB v. Brown, 6 Vet. App. 35 (1993).

In July 2012, the Board remanded this matter to the Agency of Original Jurisdiction (AOJ) (in this case, the RO in St. Petersburg, Florida) for additional development.  A review of the claims file shows that there has been substantial compliance with the Board's remand directives.  The Board directed that the AOJ obtain the Veteran's updated treatment records and schedule him for appropriate examinations to determine the current nature and severity of his service-connected bilateral knee chondromalacia, lumbosacral spine disability, cervical spine disability, and left ear hearing loss.  The requested records subsequently were associated with the Veteran's claims file and the examinations occurred in February and March 2013.  See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

In an April 2013 rating decision, the RO assigned a higher initial 10 percent rating effective December 9, 2007, for the Veteran's service-connected cervical spine disability.  Because the initial rating assigned to the Veteran's service-connected cervical spine disability is not the maximum rating available for this disability, this claim remains in appellate status.  See AB, 6 Vet. App. at 35.

The Board notes that, in Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim cannot be considered separate and apart from an increased rating claim.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  Instead, the Court held that a TDIU claim is an attempt to obtain an appropriate rating for a service-connected disability.  The Court also found in Rice that, when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability.  The record in this case indicates that the Veteran has not asserted that he is unemployable by reason of his service-connected disabilities; instead, it appears that he has been employed full-time.  Thus, the Board finds that, because a TDIU claim is not reasonably raised by a review of the record evidence, Rice is inapplicable to this appeal.

The issue of entitlement to an initial rating greater than 10 percent for right knee chondromalacia is addressed in the REMAND portion of the decision below and is REMANDED again to the AOJ.  VA will notify the Veteran if further action is required.


FINDINGS OF FACT

1.  The record evidence shows that the Veteran's service-connected left knee chondromalacia is manifested by, at worst, mild discomfort, crepitus, and a popping sensation on flexion with a full range of motion.

2.  The record evidence shows that the Veteran's service-connected lumbosacral spine disability is manifested by, at worst, forward flexion limited to 70 degrees with guarding or muscle spasm not resulting in abnormal gait or spinal contour.

3.  The record evidence shows that the Veteran's service-connected left ear hearing loss is assigned a Roman numeral of I throughout the pendency of this appeal.

4.  The record evidence shows that the Veteran's service-connected cervical spine disability is manifested by, at worst, a combined range of motion of 305 degrees.


CONCLUSIONS OF LAW

1.  The criteria for an initial rating greater than 10 percent for left knee chondromalacia have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5010-5260 (2015).

2.  The criteria for an initial rating greater than 10 percent for a lumbosacral spine disability have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5239 (2015).

3.  The criteria for an initial compensable rating for left ear hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.385, 4.1, 4.2, 4.7, 4.85, Tables VI and VII, 4.86, DC 6100 (2015). 

4.  The criteria for an initial rating greater than 10 percent for a cervical spine disability have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5239 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act (VCAA) must be examined.  The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim.

The Veteran's higher initial rating claims for left knee chondromalacia, a lumbosacral spine disability, left ear hearing loss, and for a cervical spine disability are "downstream" elements of the AOJ's grant of service connection for each of these disabilities in the currently appealed rating decision.  For such downstream issues, notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159 is not required in cases where such notice was afforded for the originating issue of service connection.  See VAOPGCPREC 8-2003 (Dec. 22, 2003).  Courts have held that 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).  In December 2007, VA notified the Veteran of the information and evidence needed to substantiate and complete the service connection claims for left knee chondromalacia, a lumbosacral spine disability, left ear hearing loss, and for a cervical spine disability, including what part of that evidence he was to provide and what part VA would attempt to obtain for him.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187.

With respect to the timing of the notice, the Board points out that the Court has held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Here, the December 2007 VCAA notice was issued prior to the currently appealed rating decision issued in May 2008; thus, this notice was timely.  Because the Veteran's higher initial rating claims are being denied in this decision, any question as to the appropriate disability rating or effective date is moot.  See Dingess v. Nicholson, 19 Vet. App. 473 (2006).  And any defect in the notices provided to the Veteran and his service representative has not affected the fairness of the adjudication.  See Mayfield, 444 F.3d at 1328.

The Board is aware of the decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) in which the Court held that, for an increased-compensation claim, section § 5103(a) requires, at a minimum, VA notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life.  Relying on the informal guidance from VA's Office of General Counsel (OGC) and a VA Fast Letter issued in June 2008 (Fast Letter 08-16; June 2, 2008), the Board finds that Vazquez-Flores is not applicable.  According to OGC, because this appeal arises from an initial rating decision, VCAA notice obligations are satisfied fully once service connection has been granted.  Any further notice and assistance requirements are covered by 38 U.S.C. §§ 5104(a), 7105(d)(1), and 5103A as part of the appeals process, upon the filing of a timely NOD with respect to the initial rating or effective date assigned following the grant of service connection.

In Dingess, the Court held that, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  See Dingess, 19 Vet. App. at 490-91.  To the extent that Dingess requires more extensive notice as to potential downstream issues such as disability rating and effective date, because the currently appealed rating decision was fully favorable to the Veteran on the issues of service connection for left knee chondromalacia, a lumbosacral spine disability, left ear hearing loss, and for a cervical spine disability, and because the Veteran was fully informed of the evidence needed to substantiate these claims, the Board finds no prejudice to the Veteran in proceeding with the present decision.  See also Bernard v. Brown, 4 Vet. App. 384, 394 (1993).    

The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the AOJ and the Board although he declined to do so.  It appears that all known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise.  The Veteran's electronic paperless claims files in Virtual VA and in Veterans Benefits Management System (VBMS) have been reviewed.  The Veteran's complete Social Security Administration (SSA) records have been obtained and associated with the claims file although SSA also denied the Veteran's SSA disability benefits claim.

The Veteran has been provided with VA examinations which address the current nature and severity of his service-connected left knee chondromalacia, lumbosacral spine disability, left ear hearing loss, and cervical spine disability.  Given that the pertinent medical history was noted by the examiners, these examination reports set forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations.  Thus, the Board finds the examinations of record are adequate for rating purposes and additional examination is not necessary regarding the claims adjudicated in this decision.  See also 38 C.F.R. §§ 3.326, 3.327, 4.2.  In summary, VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA.

Higher Initial Rating Claims

The Veteran contends that his service-connected left knee chondromalacia, lumbosacral spine disability, left ear hearing loss, and cervical spine disability are all more disabling than currently (and initially) evaluated.  

Laws and Regulations

In general, disability evaluations are assigned by applying a schedule of ratings that represent, as far as can be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities and the criteria that must be met for specific ratings.  The regulations require that, in evaluating a given disability, the disability be viewed in relation to its whole recorded history.  38 C.F.R. § 4.2; see Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, as in this case, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time.  Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings.  See Fenderson v. West, 12 Vet. App. 119 (1999).

In Johnson, the Federal Circuit held that 38 C.F.R. § 3.321 required consideration of whether a Veteran is entitled to referral to the Director, Compensation Service, for consideration of the assignment of an extraschedular rating based on the impact of his or her service-connected disabilities, individually or collectively, on the Veteran's "average earning capacity impairment" due to such factors as marked interference with employment or frequent periods of hospitalization.  See Johnson v. McDonald, 762 F.3d 1362 (2014); see also 38 C.F.R. § 3.321(b)(1).  As is explained below in greater detail, following a review of the record evidence, the Board concludes that the symptomatology experienced by the Veteran as a result of his service-connected disabilities, individually or collectively, does not merit referral to the Director, Compensation Service, for consideration of the assignment of an extraschedular ratings.  In other words, the record evidence does not indicate that these service-connected disabilities, individually or collectively, show marked interference with employment or frequent periods of hospitalization or otherwise indicate that the symptomatology associated with them is not contemplated within the relevant rating criteria found in the Rating Schedule.

The Veteran's service-connected left knee chondromalacia currently is evaluated as 10 percent disabling by analogy to 38 C.F.R. § 4.71a, DC 5010-5260 (degenerative arthritis-limitation of leg flexion).  See 38 C.F.R. § 4.71a, DC 5010-5260 (2015).  Under DC 5010, a 10 percent rating is assigned for degenerative arthritis with x-ray evidence of the involvement of 2 or more major joints or 2 or more minor joint groups.  A maximum 20 percent rating is assigned for degenerative arthritis with x-ray evidence of the involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations.  See 38 C.F.R. § 4.71a, DC 5010 (2015).

A 10 percent rating is assigned under DC 5260 for flexion limited to 45 degrees.  A 20 percent rating is assigned for flexion limited to 30 degrees.  A maximum 30 percent rating is assigned for flexion limited to 15 degrees.  See 38 C.F.R. § 4.71a, DC 5260 (2015).

The Veteran's service-connected lumbosacral spine disability currently is evaluated as 10 percent disabling under 38 C.F.R. § 4.71a, DC 5239 (spondylolisthesis or segmental instability).  See 38 C.F.R. § 4.71a, DC 5239 (2015).  The Veteran's service-connected cervical spine disability currently is evaluated as 10 percent disabling under 38 C.F.R. § 4.71a, DC 5239, as well.  Id.  Under the General Rating Formula, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees, a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, a combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees, or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of the height.  A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, the combined range of motion of the thoracolumbar spine not greater than 120 degrees, the 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 for forward flexion of the cervical spine 15 degrees or less or favorable ankylosis of the entire cervical spine.  A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine, forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine.  A maximum 100 percent rating is assigned for unfavorable ankylosis of the entire spine.

The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment.  38 C.F.R. § 4.10 (2015).  Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  38 C.F.R. § 4.40 (2015).  Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing.  For the purpose of rating disability from arthritis, the cervical vertebrae and the lumbar vertebrae are considered groups of minor joints ratable on a parity with major joints.  38 C.F.R. § 4.45 (2015).  VA must consider "functional loss" of a musculoskeletal disability separately from consideration under the diagnostic codes; "functional loss" may occur as a result of weakness, fatigability, incoordination or pain on motion.  38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  VA must consider any part of the musculoskeletal system that becomes painful on use to be "seriously disabled."

If a Veteran has separate and distinct manifestations relating to the same injury, he should be compensated under different diagnostic codes.  Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993).  The evaluation of the same manifestation under different diagnostic codes is to be avoided, however.  38 C.F.R. § 4.14 (2015).  Where a Veteran has a limitation of flexion and a limitation of extension, the limitations must be rated separately to compensate adequately for functional loss.  This comports with the principle underlying Esteban.  See VAOPGCPREC 9-2004.  The evaluation of the same manifestation under different diagnostic codes is to be avoided, however.  38 C.F.R. § 4.14 (2015).  The Rating Schedule may not be employed as a vehicle for compensating a claimant twice or more for the same symptomatology, since such a result would overcompensate the claimant for the actual impairment of his earning capacity and would constitute pyramiding.  See Esteban, 6 Vet. App. at 259 (citing Brady v. Brown, 4 Vet. App. 203 (1993)).  VA's General Counsel has held that limitation of motion and instability of the knee involve different symptomatology and separate ratings specifically are allowed under the Rating Schedule with x-ray evidence of arthritis.  See VAOPGCPREC 23-97 and VAOPGCPREC 9-98.

Under 38 C.F.R. §§ 4.40 and 4.45, a Veteran's pain, swelling, weakness, and excess fatigability must be considered when determining the appropriate evaluation for a disability using the limitation of motion diagnostic codes.  See Johnson v. Brown, 9 Vet. App. 7, 10 (1996). The Court held in DeLuca that all complaints of pain, fatigability, etc., shall be considered when put forth by a Veteran.  Therefore, consistent with DeLuca and 38 C.F.R. § 4.59, the Veteran's complaints of pain have been considered in the Board's review of the diagnostic codes for limitation of motion.

The Veteran's service-connected left ear hearing loss currently is evaluated as zero percent disabling (non-compensable) effective December 9, 2007, under 38 C.F.R. § 4.85, Tables VI and VII.  See 38 C.F.R. § 4.85, Tables VI, VII (2015).  The Court has held that the assignment of disability ratings for hearing impairment is to be derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).

The Rating Schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four.  See 38 C.F.R. § 4.85.  To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels designated from I for essentially normal acuity, through XI for profound deafness.  38 C.F.R. § 4.85, Tables VI, VII.

Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing.  Id.  Table VIA is used when the examiner certifies that the use of speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86.  38 C.F.R. § 4.85(c).

When the puretone 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 puretone 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).

Factual Background

The Veteran's available service treatment records show that, at his enlistment physical examination in March 2004, prior to his entry on to active service in May 2004, clinical evaluation of the Veteran was completely normal with the exception of a small chin scar.  The Veteran denied all relevant pre-service medical history.  His pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
5
10
5
LEFT
15
15
0
10
30

He denied any medical problems on pre-deployment health assessments completed in January 2005 and in March 2006.

On outpatient treatment in May 2005, the Veteran complained of left knee pain "due to weight lifting accident."  He reported that, while working out, he "felt his knee pop while squatting."  He had attempted to ice the left knee injury "with little success."  He also complained of "uncomfortable sleep due to the knee pain."  He rated his left knee pain as 6/10 on a pain scale.  Objective examination of the left knee showed no swelling, deformities, or limited range of motion, slight pain on palpation, and pain on impact.  The assessment was left knee strain.

A private magnetic resonance imaging (MRI) scan of the Veteran's left knee in June 2005 minimal knee joint effusion but otherwise was negative with "no evidence for ligament or meniscal tear."  X-rays of the Veteran's left knee in July 2005 were normal.

On outpatient treatment in August 2005, the Veteran's complaints included left knee pain for the past 1 1/2 months.  He "reports his pain began after doing squats and [he] heard a pop."  An MRI scan had shown joint effusion with no ligament or meniscal involvement.  The Veteran stated that his left knee pain was "behind [the] kneecap and [included a] feeling of knee popping."  He also stated that "his knee feels like it wants to give out approx[imately] every other day."  He rated his pain as 6/10 on a pain scale secondary to doing jumping that morning "and lots of running this week."  Physical examination of the left knee showed tenderness to palpation on the lateral knee around the patella and lateral tibial plateau, muscle weakness on flexion (4/5), 4+/5 knee extension with pain laterally, a full range of motion, and an ability "to arise from a squatting position."  The assessment was patellofemoral dysfunction.  The Veteran was placed on a temporary physical profile for left knee pain later in August 2005.

On outpatient treatment on September 8, 2005, the Veteran complained of low back pain since being kicked during physical training that morning.  It "hurts to move."  He denied any history of back pain.  Physical examination showed he "looks uncomfortable," tenderness in the lower back "just lateral to lower lat[eral] lumbar region [and] left sciatic region," back pain "when [he] raises" the left lower extremity, intact distal sensation, and an ability to bear weight.  The assessment was left lumbar contusion and sprain.  

On September 12, 2005, the Veteran complained of low back pain which had lasted for 5 days.  He reported that it was hard to walk, turn, sit down, bend over, or do "anything physical."  He described his low back pain as a sharp, shooting pain from the lumbar region to the glutes.  Objective examination showed he was in obvious discomfort, unable to sit straight, walking with discomfort, and "having [a] very hard time trying to lie back," lumbar spasm in the left paralumbar region.  X-rays were normal.  The assessment was lumbar contusion.

The Veteran reported experiencing back pain during a deployment to Afghanistan on a post-deployment health assessment completed in February 2007.

On the authorized audiological evaluation in February 2007, the Veteran's pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
5
5
5
LEFT
25
15
5
15
20

The in-service audiologist stated that there was no significant threshold shift.

On outpatient treatment in March 2007, the Veteran's complaints included back pain causing numbness in his hands and fingers for the previous 2-3 months including "while deployed to [Task Force] Boar" in Afghanistan from November 2006 to February 2007.  He stated that his back pain radiated in to his shoulder blades.  Objective examination showed a normal gait, an abnormal spinal alignment, "shoulders don't appear square," and a right scapula less elevated than left scapula.  X-rays of the cervical spine were normal.  The assessment included cervicalgia with subjective neurological findings.

In April 2007, the Veteran was diagnosed as having cervical pain consistent with bilateral upper extremity weakness.  On private outpatient treatment later in April 2007, M.C., M.D., stated that the Veteran "has been having neck pain.  The pain is more in the left side than right side.  He complains of some numbness of his hands, more so on the left than right."  He rated his pain as 3-4/10 on a pain scale and denied "any weakness or bowel/bladder incontinence."  He also complained of "some pain in his forearms, more so on the left side."  An MRI scan was reviewed and "showed a disk bulge and facet arthropathy at the C5-C6 level."  An electromyograph (EMG) of the upper extremities was normal.   The impression was no evidence of cervical radiculopathy.

The Veteran reported experiencing back pain, muscle aches, and ringing of the ears during a deployment to Afghanistan on a post-deployment health assessment completed in June 2007.

A private MRI of the lumbar spine in July 2007 showed minimal disc bulge at L4-L5 and early facet arthropathy at L4-L5 "causing no spinal canal narrowing and no significant foraminal narrowing."

The Veteran was placed on a permanent physical profile in August 2007 for lumbar spine disease.  On outpatient treatment later in August 2007, range of motion testing of the thoracolumbar spine showed forward flexion to 60 degrees, extension to 15 degrees, left lateral flexion to 20 degrees, right lateral flexion to 18 degrees, left lateral rotation to 40 degrees, and right lateral rotation to 42 degrees.  There was no additional limitation of motion on repetitive testing.  All ranges of motion were limited by pain.  Physical examination showed localized tenderness in the T12-L1 paraspinals and spinous processes, mild lumbar paraspinal spasms on the left, and no guarding, abnormal gait, or abnormal spinal contour.

At his separation physical examination in August 2007, prior to his separation from service in December 2007, the Veteran reported only an in-service history of "[b]ack pain [which] prohibits me to do the lifting + running needed to do my job."  He denied any history of hearing loss.  He also reported in-service knee trouble.  Clinical evaluation was normal except for his spine.  The Veteran's pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
5
10
10
LEFT
45
10
10
10
40

The summary of defects and disease included lumbar spondylosis and lumbar disc degeneration which were considered significant or disqualifying defects.  sensorineural hearing loss also was listed in the summary of defects and diagnoses.

A Medical Evaluation Board (MEB) in October 2007 diagnosed the Veteran as having lumbar spondylosis, lumbar disc degeneration, and sensorineural hearing loss.  He did not meet the Army retention requirements due to his lumbar spondylosis and lumbar disc degeneration.  The MEB noted that the Veteran had injured his lumbar spine in December 2006 while deployed to Afghanistan.  The MEB concluded that the Veteran could not perform his duties.  The Veteran stated that he agreed with the MEB's findings and did not want to continue on active service.

The post-service evidence shows that, on VA audiology examination in February 2008, the Veteran's complaints included reduced hearing.  "The Veteran reported having difficulty understanding speech in some situations."  He also reported an in-service history of "exposure to excessive noise while in Afg[h]anistan.  Exposure included big guns, cannon fire, Howitzers, and small arms fire.  He was a right handed shooter."  The Veteran's pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
20
15
15
10
LEFT
15
15
15
15
35

Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 88 percent in the left ear.  The diagnoses included normal to moderate sensorineural hearing loss in the left ear.

On VA joints examination in February 2008, the Veteran's complaints included constant low back pain and left knee pain.  The Veteran rated his low back pain as 5-6/10 on a pain scale and radiating in to the left shoulder blade which he rated as 6/10 on a pain scale.  He denied any bowel or bladder dysfunction or motor or sensory deficits.  He had no problems with his activities of daily living due to his low back pain.  "He works in an aluminum mill and does not have any limitations but it is difficult for him to stand for long periods of time."  He used no assistive devices.  He reported no other flare-ups, exacerbations, or bed rest in the previous 12 months.  The Veteran rated his left knee pain as 5-6/10 on a pain scale "located about the patella region" with "an intermittent history of swelling, a history of popping with occasional pain, [and] no history of locking."  He did not use a knee brace or orthotic.  He had no problems with activities of daily living due to his left knee pain.

Physical examination of the lumbar spine in February 2008 showed mild tenderness to palpation in the left paraspinous muscles and the left parascapular region, negative straight leg raising, normal deep tendon reflexes, full sensation, and 5/5 muscle strength.  Range of motion testing of the lumbar spine showed flexion to 80 degrees, extension to 30 degrees, lateral rotation to 30 degrees in each direction, and lateral bending to 30 degrees in each direction.  There was no additional limitation of motion on repetitive testing although there was "mild pain with extremes of flexion."  Physical examination of the left knee showed tenderness to palpation in the medial and lateral facets of the patella "with a positive patella grind," and no effusion. Range of motion testing of the left knee showed flexion to 120 degrees with "no change with repetition and there is no pain with motion."  The VA examiner stated that "there was mild discomfort associated with examination of the thoracolumbar spine" and the left knee.  "It is conceivable that pain could further limit function as described particular with repetition" but it was not feasible to express this in terms of degrees of additional limitation of motion.  X-rays of the left knee were normal.  X-rays of the lumbar spine were within normal limits.  The assessment included thoracolumbar strain and left lateral knee chondromalacia patella.

On VA outpatient treatment in June 2008, the Veteran complained of low back pain since "he was doing some lifting" and left knee pain "with any movement" and "some pain down the [left] leg to the knee."  A longstanding history of back problems was noted.  He denied any loss of bowel or bladder control.  Objective examination showed no back spasms palpated, back pain elicited "in all directions" of range of motion testing, no radiating pain, and negative straight leg raising.  The assessment was low back pain and muscle spasms by history.

In August 2008, the Veteran complained of constant tightness and aching pain "in the left spine" which he rated as 7/10 on a pain scale, burning and sharp pain radiating down the posterior leg to just about the knee, and muscle spasms in the lower back.  He also complained of aching pain beneath and behind the left patella with pain radiating down the leg to the mid-calf which he rated as 2-3/10 on a pain scale.  A history of buckling, grinding, and popping of the left knee was reported.  He denied any knee joint pain, stiffness, swelling, or muscle weakness.  Physical examination showed 4/5 muscle strength in all extremities, decreased muscle strength due to back pain, tenderness to palpation beneath the patella, a full range of motion in the joints, muscle spasms on the left paraspinous muscle, tenderness to palpation in the lumbar spine, and positive straight leg raising with radiation down the left leg.  The assessment included low back pain and bilateral knee arthralgia.

In September 2008, the Veteran complained of left low back pain.  A computerized tomography (CT) scan of the Veteran's lumbar spine was reviewed and showed slight narrowing of the L3/4 disc space.  Physical examination showed mild left paraspinal pain, negative straight leg raising, and equal deep tendon reflexes.  The assessment was chronic low back pain secondary to lumbar degenerative disc disease.

In October 2008, the Veteran complained that "the back is worse, doing more lifting.  Sharp pain down the right buttocks."  He rated his low back pain as 6-7/10 on a pain scale worsening to 9/10 on a pain scale.  "He is getting some relief with the present treatment regimen."  Physical examination showed tenderness to palpation of the left lower lumbosacral area.  The assessment included low back pain.

In August 2009, the Veteran's complaints included constant tightness, aching pain, and muscle spasms in the left lower lumbar spine which he rated as 7/10 on a pain scale with burning and sharp pain radiating down the posterior leg to just above the knee.  He was taking Robaxin and Naprosyn "which does provide some relief."  Physical examination of the back showed no tenderness to palpation and a full range of motion.  The assessment included lumbar strain.

In September 2009, the Veteran's complaints included persistent low back pain localized to the left side radiating to the left lower extremity to the knee.  He rated his pain as 6-7/10.  "He is doing Pilates and yoga."  A history of low back pain was noted.  Physical examination showed lumbar paraspinal tenderness with limited range of motion in the lumbar spine, active range of motion within normal limits, negative straight leg raising, a normal gait, and intact sensation.  The assessment was chronic low back pain with left lower extremity radicular pain and lumbar disc protrusions/bulges.

On VA hearing loss and tinnitus Disability Benefits Questionnaire (DBQ) in February 2013, no complaints were noted.  The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records.  The Veteran's pure tone thresholds, in decibels, were as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
10
20
10
15
15
LEFT
15
15
10
15
45

Speech audiometry revealed speech recognition ability of 98 percent in each ear.  The diagnoses included sensorineural hearing loss in the left ear.

On VA knee and lower leg DBQ in March 2013, the Veteran's complaints included constant bilateral knee pain, left knee worse than the right knee.  The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records.  The Veteran described his left knee pain "as a dull aching type of pain at a level of 4-5/10.  If he steps hard on the left knee he will have a pulsating sharp pain in the left knee.  No flare ups.  The Veteran has no limitations with walking, standing, or sitting."  Range of motion testing of the left knee showed flexion to 140 degrees or greater with no objective evidence of painful motion and extension to zero degrees (no limitation of extension) with no objective evidence of painful motion.  There was no additional limitation of motion on repetitive testing.  Physical examination of the left knee showed no tenderness or pain on palpation for joint line or soft tissues, 5/5 muscle strength, no joint instability, no evidence or history of recurrent patellar subluxation/dislocation, no "shin splints," although crepitus "and [a] popping sensation with flexion" were present.  The diagnosis was bilateral knee chondromalacia.

On VA neck (cervical spine) conditions DBQ in March 2013, the Veteran's complaints included constant neck pain which he described as a sharp, pinching type of pain and rated as 6-7/10 on a pain scale.  "The pain is at the base of the neck and into the shoulder blades.  The pain does not radiate down his arms."  The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records.  The Veteran reported experiencing flare-ups of neck pain a few times a week that lasted for a few hours "until the tramadol kicks in."  Range of motion testing of the cervical spine showed forward flexion to 45 degrees or greater with no objective evidence of painful motion, extension to 45 degrees or greater with no objective evidence of painful motion, lateral flexion to 30 degrees in each direction with objective evidence of painful motion beginning at 30 degrees, right lateral rotation to 80 degrees or greater with no objective evidence of painful motion, and left lateral rotation to 75 degrees with no objective evidence of painful motion.  There was no additional limitation of motion on repetitive testing.  Physical examination of the cervical spine showed less movement than normal, pain on movement, no localized tenderness or pain on palpation of the joints/soft tissues, no guarding or muscle spasm, 5/5 muscle strength, no muscle atrophy, normal reflexes, normal sensation, no radicular pain or any other signs or symptoms due to radiculopathy, no neurologic abnormalities, and no intervertebral disc syndrome.  The Veteran did not use any assistive devices for ambulation.  The VA examiner stated that the Veteran's cervical spine condition impacted his ability to work through "difficulty with lifting and carrying objects.  He will need to take freq[uent] breaks from the computer due to increased pain with throbbing."  The diagnosis was cervical strain.

On VA back (thoracolumbar spine) conditions DBQ in March 2013, the Veteran's complaints included constant back pain which he described as a dull aching type of pain and rated as 5/10 on a pain scale.  "The Veteran will have periods where the pain will increase to a sharp pain at a level of 9/10 with certain movements.  The back will get stuck.  The instant pain will last for 10-15 minutes and then decrease to his daily 5/10 pain."  The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records.  The Veteran reported that his low back pain "may shoot down the left" leg to the left knee and this pain occurred several times a week and lasted for 1/2 day at a time.  He denied any bowel or bladder changes.  The Veteran exercised twice a week on the elliptical machine for 30 minutes and did pull-ups, push-ups, and yoga and Pilates once a week.  "The Veteran has no limitations with walking, sitting, or standing.  He will wear a heat wrap to keep his lower back loose."  Range of motion testing of the thoracolumbar spine showed forward flexion to 70 degrees with objective evidence of painful motion at 70 degrees, extension to 25 degrees with objective evidence of painful motion at 25 degrees, right lateral flexion to 20 degrees with objective evidence of painful motion at 20 degrees, left lateral flexion to 25 degrees with objective evidence of painful motion at 25 degrees, and lateral rotation to 30 degrees or greater with no evidence of painful motion in either direction.  There was no additional limitation of motion on repetitive testing.  Physical examination of the lumbar spine showed less movement than normal, pain on movement, localized tenderness or pain to palpation for joints/soft tissues in the mid to lower back, guarding or muscle spasm not resulting in abnormal gait or spinal contour, 5/5 muscle strength, no muscle atrophy, normal reflexes, normal sensation, negative straight leg raising, mild intermittent pain of the left lower extremity involving the L4/L5 nerve roots but no other signs or symptoms or radiculopathy, no neurologic abnormalities, and no intervertebral disc syndrome.  The Veteran regularly used a back brace.  "He will wear a brace at work."  X-rays showed no arthritis.  The VA examiner stated, "The Veteran will not be able to lift objects while on the job.  He will need assistance or have other members do the lifting.  The Veteran is able to work at the computer [without] difficulty."  The Veteran was employed full-time as a military contractor.  The diagnosis was lumbar strain with dextroscoliosis.

In an April 2013 letter, P.J.Y., D.C., stated that the Veteran "has suffered from significant and progressive extension of the pain and dysfunction associated with" his service-connected left knee chondromalacia.  "He has pain which is constant in varying degrees, and intensified with sitting, standing, and transitioning to a weight bearing position.  The left knee has clicking, popping, and gives out at random which has caused several near falls."  Physical examination showed adequate flexion and extension of the left knee, moderate lateral instability, and crepitus "which is concomitant with lateral edema.  [The Veteran] is advised by his orthopedic surgeon that surgery on his left knee is inevitable."  Dr. P.J.Y. also stated that the Veteran "has developed increased low back pain and further dysfunction of his lumbar spine which is now constant in varying degrees.  His pain concentrates in the lumbosacral region and migrates into the left lower buttock and left posterior thigh."  Physical examination showed "his true flexion (hips immobile) is 25 degrees active and less than 30 degrees passive.  His true extension is 5 degrees active and less than 10 degrees passive.  There is significant loss (50% or more) of the normal mobility of the L5 segment which is concomitant with markedly hypertonic deep and intermediate musculature at that level."  Dr. P.J.Y. stated that the Veteran "has also developed radicular pain into the left upper extremity ulnar distribution.  On examination his cervical spine ranges of motion properly tested absent motion of the shoulders or thoracic spine are flexion 30 degrees, extension 35 degrees, right rotation 40 degrees, left rotation 45 degrees, right lateral flexion 15 degrees, and left lateral flexion 20 degrees."  Dr. P.J.Y. next stated, "There is significant (50% or more) loss of the normal vertebral mobility at C2, C3, C4, and the cervicothoracic region generally."  The diagnoses included left sciatic radicular pain associated with left piriformis syndrome, "[e]xtension of service connected condition of the left knee," "[s]ignificant extension to service connected condition of the low back," and "[e]xtension of service connected cervicothoracic pain with the clinical addition of chronic discopathy manifesting in radicular pain."

Analysis

The Board finds that the preponderance of the evidence is against granting the Veteran's claim for an initial rating greater than 10 percent for left knee chondromalacia.  The Veteran contends that his service-connected left knee chondromalacia is more disabling than currently evaluated.  The record evidence does not support his assertions regarding worsening of the symptomatology attributable to his service-connected left knee chondromalacia.  It shows instead that this disability is manifested by, at worst, mild discomfort, crepitus, and a popping sensation on flexion with a full range of motion (as seen on VA examination in March 2013).  The Board acknowledges that the Veteran's service treatment records show that he injured his left knee during active service.  The post-service evidence shows that, on VA examination in June 2008, the Veteran had 120 degrees of left knee flexion, normal x-rays, and only mild discomfort.  VA outpatient treatment in August 2008 revealed a diagnosis of left knee arthralgia.  At his most recent VA examination in March 2013, the Veteran had a full range of motion in the left knee without pain and only crepitus and popping on flexion was present.  The evidence does not indicate that the Veteran's left knee x-rays show the involvement of degenerative arthritis in 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations or left leg flexion limited to 30 degrees or less (i.e., a 20 percent rating under DC 5010 or DC 5260, respectively) such that an initial rating greater than 10 percent is warranted under DC 5010-5260.  See 38 C.F.R. § 4.71a, DC 5010-5260 (2015).

The Board recognizes that, in an April 2013 letter, Dr. P.J.Y. stated that the Veteran experienced constant left knee pain, clicking, popping, and giving way as a result of his service-connected left knee chondromalacia.  This clinician also found that the Veteran's left knee flexion and extension were "adequate" although the range of motion (in degrees) was not provided.  The Board also recognizes that Dr. P.J.Y. found moderate lateral instability on physical examination of the Veteran's left knee.  Although the Veteran's service-connected left knee chondromalacia currently is evaluated under a DC for evaluating limitation of motion, there is no indication that the Veteran's left knee x-rays have shown the presence of arthritis as is required in order to obtain separate compensable ratings for left knee instability and limitation of motion.  See VAOPGCPREC 23-97 and VAOPGCPREC 9-98.  In other words, the Veteran cannot be awarded a separate compensable rating for moderate left knee instability (as reported by Dr. P.J.Y. in April 2013) in addition to his current 10 percent rating for left knee limitation of motion as such would constitute pyramiding.  More importantly, the Veteran has not identified or submitted any evidence, to include a medical nexus, demonstrating his entitlement to an initial rating greater than 10 percent for left knee chondromalacia.  In summary, the Board finds that the criteria for an initial rating greater than 10 percent for left knee chondromalacia have not been met.

The Board next finds that the preponderance of the evidence is against granting the Veteran's claim for an initial rating greater than 10 percent for a lumbosacral spine disability.  The Veteran contends that this disability is more disabling than currently evaluated.  The record evidence does not support his assertions regarding worsening of the symptomatology attributable to his service-connected lumbosacral spine disability.  It shows instead that that the Veteran's service-connected lumbosacral spine disability is manifested by, at worst, forward flexion limited to 70 degrees with guarding or muscle spasm not resulting in abnormal gait or spinal contour (as seen on VA examination in March 2013).  The Board recognizes that the Veteran injured his lumbosacral spine during active service and ultimately received a medical discharge (or MEB) because he did not meet Army retention requirements due to his lumbar spondylosis and lumbar disc degeneration incurred in service.  

The post-service evidence shows that, on VA joints examination in February 2008, the Veteran's lumbosacral spine flexion was limited to 80 degrees with no additional limitation of motion on repetitive testing and "mild pain with extremes of flexion," and mild tenderness to palpation in the left paraspinous muscles and the left parascapular region.  X-rays of the lumbar spine were within normal limits.  VA outpatient treatment records indicate that the Veteran had a full range of motion in his lumbosacral spine in August 2008 and in August 2009.  Although the Veteran complained that his lumbosacral spine had worsened in October 2008, he also reported that his current treatment regimen provided "some relief" for his symptoms.  He subsequently reported that medications gave "some relief" to his low back pain in August 2009 and he had no tenderness to palpation.  The active range of motion for the Veteran's lumbosacral spine was within normal limits in September 2009.  At his most recent VA examination for the lumbosacral spine in March 2013, flexion was limited to 70 degrees with pain.  He also demonstrated tenderness to palpation in the lumbosacral spine and mild intermittent pain of the left lower extremity although x-rays showed no arthritis.

The Board acknowledges that, in April 2013, Dr. P.J.Y. stated that the Veteran's lumbosacral spine "true flexion (hips immobile) is 25 degrees active and less than 30 degrees passive.  His true extension is 5 degrees active and less than 10 degrees passive.  There is significant loss (50% or more) of the normal mobility of the L5 segment which is concomitant with markedly hypertonic deep and intermediate musculature at that level."  The Board notes in this regard that Dr. P.J.Y. did not explain what he meant by the terms "true flexion" and "true extension" and how these range of motion findings differed from the range of motion findings reported on VA examinations conducted during the pendency of this appeal.  Nor did this clinician explain how or why the range of motion in the Veteran's lumbosacral spine worsened so dramatically between his VA examination in March 2013, when forward flexion was limited to 70 degrees, and in April 2013, when his "true flexion" was limited to 25 degrees.  This clinician finally did not explain what he meant by the diagnosis of "[s]ignificant extension to service connected condition of the low back."

The Court has held that the Board is free to assess medical evidence and is not compelled to accept a physician's opinion.  Wilson v. Derwinski, 2 Vet. App. 614 (1992).  A bare conclusion, even one reached by a medical professional, is not probative without a factual predicate in the record.  Miller v. West, 11 Vet. App. 345, 348 (1998).  The Court also has held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999).  Thus, a medical opinion is inadequate when it is unsupported by clinical evidence.  Black v. Brown, 5 Vet. App. 177, 180 (1995).  Having reviewed the April 2013 letter from Dr. P.J.Y., the Board finds that there is no factual predicate in the record supporting Dr. P.J.Y.'s opinion concerning the nature and severity of the Veteran's service-connected lumbosacral spine disability.  As noted above, it appears that much of the clinical data on which Dr. P.J.Y.'s opinion rests does not comport with commonly accepted medical terminology (i.e., his use of the terms "true flexion" and "true extension") and, as such, does not reflect clinical data or other rationale.  The Board also finds that, given the deficiencies in Dr. P.J.Y.'s April 2013 opinion, it would not be feasible to remand this claim in order to request that Dr. P.J.Y. provide further explanation of this opinion concerning the nature and severity of the Veteran's service-connected lumbosacral spine disability.  Thus, the Board finds that Dr. P.J.Y.'s April 2013 opinion is not probative on the issue of whether the Veteran is entitled to a higher initial rating for his service-connected lumbosacral spine disability.

Taken together, the record evidence suggests that, although the Veteran continues to complain about chronic low back pain as a result of his service-connected lumbosacral spine disability, there is no indication in the record evidence that the Veteran experiences at least forward flexion greater than 30 degrees but not greater than 60 degrees or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour (i.e, at least a 20 percent rating under DC 5239) such that an initial rating greater than 10 percent is warranted for his service-connected lumbosacral spine disability.  The Board notes in this regard that no incapacitating episodes of intervertebral disc syndrome (IVDS) have been found when the Veteran was examined during the pendency of this appeal so his service-connected lumbosacral spine disability is evaluated under the General Rating Formula.  See 38 C.F.R. § 4.71a, DC 5239 (2015).  And, as noted elsewhere, the range of motion testing results of record do not support the assignment of an initial rating greater than 10 percent for the Veteran's service-connected lumbosacral spine disability.  The Veteran further has not identified or submitted any evidence, to include a medical nexus, demonstrating his entitlement to an initial rating greater than 10 percent for a lumbosacral spine disability .  In summary, the Board finds that the criteria for an initial rating greater than 10 percent for a lumbosacral spine disability have not been met.

The Board next finds that the preponderance of the evidence is against granting the Veteran's claim for an initial compensable rating for left ear hearing loss.  The Veteran contends that his service-connected left ear hearing loss is more disabling than currently evaluated.  The record evidence does not support his assertions regarding worsening of the symptomatology attributable to his service-connected left ear hearing loss.  It shows instead that the Veteran's service-connected left ear hearing loss is assigned a Roman numeral of I throughout the pendency of this appeal and does not result in any compensable disability at any time during the appeal period.  The Board again notes that the assignment of disability ratings for hearing impairment is to be derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered.  See Lendenmann, 3 Vet. App. at 345.  The Veteran's available service treatment records show that left ear hearing loss was present at his separation physical examination.  See 38 C.F.R. § 3.385 (2015).  Because service connection is in effect only for left ear hearing loss, the Veteran's non-service-connected right ear is assigned a Roman numeral of I at all times relevant to this appeal.  See 38 C.F.R. § 4.85(f) (2015).  

The post-service evidence shows that the Veteran's audiometric testing on VA examination in February 2008 resulted in the assignment of a Roman numeral of I for the service-connected left ear hearing loss.  As a Roman numeral of I is assigned for the non-service-connected right ear, this equates to a zero percent rating under DC 6100.  See 38 C.F.R. § 4.85, Tables VI, VII (2015); see also Lendenmann, 3 Vet. App. at 345.  VA hearing loss and tinnitus DBQ in February 2013 resulted in the assignment of a Roman numeral of I for the service-connected left ear hearing loss.  As a Roman numeral of I is assigned for the non-service-connected right ear, this again equates to a zero percent rating under DC 6100.  Id.  The Veteran also has not identified or submitted any evidence, to include a medical nexus, demonstrating his entitlement to an initial compensable rating for left ear hearing loss.  In summary, the Board finds that the criteria for an initial compensable rating for left ear hearing loss have not been met.

The Board next finds that the preponderance of the evidence is against granting the Veteran's claim for an initial rating greater than 10 percent for a cervical spine disability.  The Veteran contends that this disability is more disabling than currently evaluated.  The record evidence does not support his assertions regarding worsening of the symptomatology attributable to his service-connected cervical spine disability.  It shows instead that that the Veteran's service-connected cervical spine disability is manifested by, at worst, a combined range of motion of 305 degrees (as seen on VA examination in March 2013).  The Veteran's service treatment records show that the Veteran was treated for cervicalgia with complaints of back pain radiating in to his shoulders and causing numbness in his hands and fingers in March 2007 although x-rays of the cervical spine were normal.  In April 2007, the Veteran was diagnosed as having cervical pain consistent with bilateral upper extremity weakness.  On private outpatient treatment later in April 2007, Dr. M.C. stated that the Veteran "has been having neck pain" although he denied "any weakness or bowel/bladder incontinence."  An MRI scan was reviewed and "showed a disk bulge and facet arthropathy at the C5-C6 level."  An EMG of the upper extremities was normal.   The impression was no evidence of cervical radiculopathy.

The post-service evidence shows that VA neck (cervical spine) conditions DBQ in March 2013 documented the Veteran's complaints of constant neck pain and flare-ups a few times a week that lasted for a few hours.  Range of motion testing of the cervical spine showed a combined range of motion of 305 degrees with objective evidence of painful motion only on lateral flexion in each direction and no additional limitation of motion on repetitive testing.  Physical examination of the cervical spine showed less movement than normal, pain on movement, no localized tenderness or pain on palpation of the joints/soft tissues, no guarding or muscle spasm, 5/5 muscle strength, no muscle atrophy, normal reflexes, normal sensation, no radicular pain or any other signs or symptoms due to radiculopathy, no neurologic abnormalities, and no IVDS.

The Board recognizes that, in an April 2013 letter, Dr. P.J.Y. stated that the Veteran experienced "radicular pain into the left upper extremity ulnar distribution" apparently as a result of his service-connected cervical spine disability.  Dr. P.J.Y. also stated, "On examination his cervical spine ranges of motion properly tested absent motion of the shoulders or thoracic spine are flexion 30 degrees, extension 35 degrees, right rotation 40 degrees, left rotation 45 degrees, right lateral flexion 15 degrees, and left lateral flexion 20 degrees."  The combined cervical spine range of motion of 185 degrees noted by Dr. P.J.Y. in April 2013 is only 60 percent of the combined cervical spine range of motion of 305 degrees achieved on VA examination approximately 1 month earlier in March 2013.  Unfortunately, however, as with the alleged worsening of the Veteran's service-connected lumbosacral spine disability, Dr. P.J.Y. also did not explain what accounted for the markedly reduced cervical spine range of motion that he noted in April 2013 when compared with the cervical spine range of motion achieved 1 month earlier on VA examination in March 2013.  This clinician also did not explain how the Veteran apparently developed radiculopathy of the left upper extremity approximately 1 month after his VA examination showed no radiculopathy was present due to his service-connected cervical spine disability.  Nor did Dr. P.J.Y. account for the fact that, prior to preparing his report in April 2013, the record evidence showed that no cervical radiculopathy was present at any time during the appeal period.  Thus, the Board finds that Dr. P.J.Y.'s April 2013 opinion is not probative on the issue of whether the Veteran is entitled to a higher initial rating for his service-connected cervical spine disability.

Taken together, the record evidence suggests that, although the Veteran continues to complain about neck and shoulder pain as a result of his service-connected cervical spine disability, there is no indication in the record evidence that the Veteran experiences at least forward flexion greater than 15 degrees but not greater than 30 degrees or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour (i.e, at least a 20 percent rating under DC 5239) such that an initial rating greater than 10 percent is warranted for his service-connected cervical spine disability.  The Board notes in this regard that no incapacitating episodes of IVDS have been found when the Veteran was examined during the pendency of this appeal so his service-connected cervical spine disability is evaluated under the General Rating Formula.  See 38 C.F.R. § 4.71a, DC 5239 (2015).  And, as noted elsewhere, the range of motion testing results of record do not support the assignment of an initial rating greater than 10 percent for the Veteran's service-connected cervical spine disability.  The Veteran further has not identified or submitted any evidence, to include a medical nexus, demonstrating his entitlement to an initial rating greater than 10 percent for a cervical spine disability.  In summary, the Board finds that the criteria for an initial rating greater than 10 percent for a cervical spine disability have not been met.

The Board finally finds that consideration of additional staged ratings for the Veteran's service-connected left knee chondromalacia, lumbosacral spine disability, left ear hearing loss, or cervical spine disability is not warranted.  The evidence suggests that the Veteran has experienced essentially the same level of disability due to each of these service-connected disabilities since he filed his service connection claims.  Thus, consideration of additional staged ratings is not warranted.  See Hart, 21 Vet. App. at 505.

Extraschedular

The Board must consider whether the Veteran is entitled to consideration for referral for the assignment of extraschedular ratings for his service-connected left knee chondromalacia, lumbosacral spine disability, left ear hearing loss, or cervical spine disability.  38 C.F.R. § 3.321; Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the Veteran or reasonably raised by the record).

An extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996).  An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). 

If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116.

The Board finds that schedular evaluations assigned for the Veteran's service-connected left knee chondromalacia, lumbosacral spine disability, left ear hearing loss, and cervical spine disability are not inadequate in this case.  Additionally, the diagnostic criteria adequately describe the severity and symptomatology of each of these service-connected disabilities throughout the appeal period.  This is especially true because the initial 10 percent ratings assigned for the Veteran's left knee chondromalacia, lumbosacral spine disability, and cervical spine disability, each effective December 9, 2007 (the day after the Veteran's date of discharge from active service), contemplate mild disability.  And the initial zero percent (non-compensable) rating assigned for the Veteran's left ear hearing loss effective December 9, 2007, contemplates no compensable disability.  Moreover, the evidence does not demonstrate other related factors such as marked interference with employment and frequent hospitalization.  The Veteran reported on VA examination in March 2013 that he was employed full-time as a military contractor.  As noted in the Introduction, a TDIU claim is not reasonably raised by a review of the record evidence.  The Veteran also has not been hospitalized for treatment of his service-connected left knee chondromalacia, lumbosacral spine disability, left ear hearing loss, or cervical spine disability at any time during the appeal period.  The evidence further does not indicate that the symptomatology associated with these service-connected disabilities, individually or collectively, is not contemplated within the relevant rating criteria found in the Rating Schedule such that a referral for extraschedular consideration is warranted under Johnson.  In light of the above, the Board finds that the criteria for submission for assignment of extraschedular ratings pursuant to 38 C.F.R. § 3.321(b)(1) are not met.  See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).


ORDER

Entitlement to an initial rating greater than 10 percent for left knee chondromalacia is denied.

Entitlement to an initial rating greater than 10 percent for a lumbosacral spine disability is denied.

Entitlement to an initial compensable rating for left ear hearing loss is denied.

Entitlement to an initial rating greater than 10 percent for a cervical spine disability is denied.


REMAND

The Veteran finally contends that his service-connected right knee chondromalacia is more disabling than currently (and initially) evaluated.  Having reviewed the record evidence, and although it is reluctant to remand this claim again, the Board finds that additional development is required before the underlying claim can be adjudicated on the merits.  Cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (finding that repeated remands "perpetuate[] the hamster-wheel reputation of Veterans law").

The Veteran advised the AOJ in statements on an "SSOC Notice Response" dated on April 4, 2013, and date-stamped as received by the AOJ on April 8, 2013, that he had right knee surgery scheduled for April 16, 2013.  In his April 2013 letter, Dr. P.J.Y. referred to the Veteran having right knee "surgery...within the last ten (10) days.  He is still recovering from surgery."  A review of the Veteran's claims file shows that records pertaining to his April 2013 right knee surgery have not been obtained.  Thus, the Board finds that, on remand, the AOJ should attempt to obtain these records before readjudicating the Veteran's higher initial rating claim for right knee chondromalacia.

Accordingly, the case is REMANDED for the following action:

1.  Contact the Veteran and/or his service representative and ask him to identify all VA and non-VA clinicians who have treated him for right knee chondromalacia since his service separation.  Obtain all VA treatment records which have not been obtained already.  Once signed releases are received from the Veteran, obtain all private treatment records which have not been obtained already, to include any records from right knee surgery that occurred on April 14, 2013.  A copy of any records obtained, to include a negative reply, should be included in the claims file.

2.  Review all evidence received since the last prior adjudication and readjudicate the Veteran's claim.  If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue.  An appropriate period of time should be allowed for response by the Veteran and his service representative.  Thereafter, the case should be returned to the Board for further appellate consideration, if in order.

The appellant has the right to submit additional evidence and argument on the matter or 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 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 2014).



______________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs