Citation Nr: 1604589	
Decision Date: 02/08/16    Archive Date: 02/18/16

DOCKET NO.  08-32 073	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to an initial rating in excess of 10 percent prior to May 21, 2010, and in excess of 20 percent from May 21, 2010, for intervertebral disc syndrome (IVDS) status-post discectomy with scar (lumbar spine disability).

2.  Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy.

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

4.  Entitlement to an initial compensable rating for seasonal allergic rhinitis.

5.  Entitlement to an initial rating in excess of 10 percent for tinnitus.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. Ragheb, Associate Counsel


INTRODUCTION

The Veteran had active service from April 1986 to October 2007. 

This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from an April 2008 rating decision of Department of Veterans Affairs VA Regional Office (RO) in Roanoke, Virginia.  

In an April 2011 rating decision, the RO granted a higher rating of 20 percent for the lumbar spine disability from May 21, 2010, and a higher rating of 10 percent for the left lower extremity radiculopathy disability for the entire appeal period.  Although higher ratings have been assigned for the lumbar spine and left lower extremity radiculopathy disabilities for part or all of the initial rating period on appeal, as reflected in the April 2011 rating decision, the issues remain in appellate status as the maximum rating has not been assigned for each disability.  See AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal).  

In September 2011, the Veteran testified at a Central Office hearing before the undersigned Acting Veterans Law Judge (AVLJ).  A transcript of that hearing is of record.  

In February 2014, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for additional development, to include obtaining VA treatment records from the Stephens City VA Medical Center, and private treatment records from Berry Hill Medical Clinic, in addition to providing a VA examination if the treatment records indicated indicate an increase in severity of the Veteran's lumbar spine, left leg radiculopathy, right ear hearing loss, and rhinitis disabilities.  The Stephens City VA treatment records have been associated with the claims file.  In a February 2014 letter, VA asked the Veteran to complete and return VA Form 21-4142 in order to obtain the Veteran's private treatment records from Berry Hill Medical Clinic.  However, the record shows that the Veteran did not return the completed forms.  The AOJ also provided the appropriate VA examinations.  Based on the foregoing, the Board finds that the AOJ substantially complied with the February 2014 Board remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998).  The case has been returned to the Board for appellate consideration.

The second issue was previously characterized as IVDS of the left lower extremity.  However, the February 2014 Board decision recharacterized the issue as listed on the Title page because the medical evidence indicates that the IVDS results in peripheral nerve sensory deficit. 

The issue of entitlement to a higher initial rating for tinnitus is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.


FINDINGS OF FACT

1. For the initial rating period from November 1, 2007 to May 21, 2010, the lumbar spine disability did not result in incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period.

2. For the initial rating period from November 1, 2007 to May 21, 2010, the lumbar spine disability was not manifested by forward flexion of the lumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion of the lumbar spine not greater than 120 degrees, or muscle spasms or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 

3. For the initial rating period from May 21, 2010, the lumbar spine disability has not resulted in incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period.

4. For the initial rating period from May 21, 2010, the lumbar spine disability did not result in forward flexion of the lumbar spine to 30 degrees, or favorable ankylosis of the entire thoracolumbar spine.

5. For the entire appeal period, the Veteran's left lower extremity radiculopathy has not resulted in disability comparable to severe incomplete paralysis of the musculocutaneous nerve or moderate incomplete paralysis of the sciatic nerve of the left lower extremity.

6. For the entire appeal period, the Veteran's right ear hearing loss is no greater than level I.

7. For the entire appeal period, the Veteran's seasonal allergic rhinitis has not been manifested by nasal obstruction or polyps.


CONCLUSIONS OF LAW

1. For the initial rating period from November 1, 2007 to May 21, 2010, the criteria for an initial disability rating in excess of 10 percent for the lumbar spine disability have not been met or more nearly approximated.  38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5003, 5242, 5243, 4.118, Diagnostic Codes 7801-7805 (2015).

2. For the initial rating period from May 21, 2010, the criteria for an initial disability rating in excess of 20 percent for the lumbar spine disability have not been met or more nearly approximated.  38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5003, 5242, 5243, 4.118, Diagnostic Codes 7801-7805 (2015).

3. For the entire appeal period, the criteria for a disability rating in excess of 10 percent for left lower extremity radiculopathy have been not been met or more nearly approximated.  38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124, 4.124a, Diagnostic Code 8520, 8522 (2015).

4. For the entire appeal period, the criteria for an initial compensable rating for right ear hearing loss have not been met or more nearly approximated.  38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100, 4.86 (2015).

5. For the entire appeal period, the criteria for an initial compensable rating for seasonal allergic rhinitis have not been met or more nearly approximated.  38 U.S.C.A. § 1155, 5103(a), 5103A (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.31, 4.97, Diagnostic Code 6522 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duties to Notify and Assist

As part of its duty to notify, when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

With respect to the appeals for higher initial ratings for the service-connected disabilities on appeal, because they arise from the Veteran's disagreement with the initial ratings following the grant of service connection for the respective disability, no additional notice is required.  The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the Court have held that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App.112 (2007); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement).

VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  VA met the duty to the assist by obtaining available service treatment records, post-service VA and private treatment records, pertinent VA examination reports, Board hearing transcript, and the Veteran's statements in support of the issues on appeal.  Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  The Board finds that VA's duty to further assist the Veteran in locating additional records has been satisfied.  See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159; Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). 

The Veteran was afforded VA medical examinations with respect to the rating claims decided herein.  The examiners, medical professionals, obtained an accurate history, listened to the Veteran's assertions, and performed the necessary tests.  The Board finds that the examinations are adequate and contain sufficient information to decide the issues on appeal.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

The Board has considered the Veteran's statement about the accuracy and completeness of the August 2007 VA spine examination report.  Specifically, the Veteran stated that the May 2010 VA examiner was more thorough than the August 2007 VA examiner and that the August 2007 VA examiner did not spend much time examining the Veteran's back.  See September 2011 Board hearing transcript. 

The Board finds that the Veteran's general assertions are insufficient to overcome the presumption of regularity applying to government officials, such as VA examiners conducting compensation examinations.  The Court has held that there is a presumption of regularity which holds that government officials are presumed to have properly discharged their official duties.  Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992).  Both the Court and the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) have held that the Board is entitled to presume the competence of a VA examiner and specific challenges to a VA examiner's competency must be raised by the appellant to overcome this presumption.  See Rizzo v. Shinseki, 
580 F.3d 1288 (Fed. Cir. 2009); Bastien v. Shinseki, 599 F.3d 1301 (Fed. Cir. 2010); see also Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (citing Hilkert v. West, 12 Vet. App. 145, 151 (1999)).  The Court held in Cox at 569 that "the Board is entitled to assume the competence of a VA examiner."  See also Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (explicitly extending the presumption of competence discussed in Cox and Rizzo to VA examiners). 

With regard to the length of time the examiner spent conducting the examination, in light of the fact that the history and clinical measures are only one part of the examination, in addition to evidentiary review and other testing, the Veteran's statement does not indicate that full range of motion testing of the lumbar spine was not conducted in this time.  The August 2007 VA examination report includes reports of the Veteran's current symptomatology, as well as clinical findings that include specific ranges of motion and test results.  It is not the length of an examination but the thoroughness and factual accuracy that matter, bearing in mind that the August 2007 VA examination was a compensation examination to measure the current severity of the lumbar spine disability, not to formulate a comprehensive treatment plan, for which a second medical opinion would be more appropriate in helping to determine a course of treatment.

Notwithstanding the Veteran's general assertions, the evidence does not reflect irregularities with the way the August 2007 VA spine examination was conducted or with the examination report itself.  For these reasons, the Board finds that the presumption of administrative regularity is not overcome and that the August 2007 VA spine examination report is adequate for rating purposes.

Finally, the Veteran testified at a hearing before the Board in September 2011.  An AVLJ who conducts a hearing must fully explain the issues and suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).  Here, during the hearing, the Veteran was assisted by a representative and the AVLJ asked relevant questions concerning the Veteran's symptoms and the resulting impairment.  Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(b)(2) (2015).

Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claims.  38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159; Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, 16 Vet. App. 183.

Disability Evaluations Generally

Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4 (2015).  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2015).

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous.  38 C.F.R. § 4.20.

The evaluation of the same disability under various diagnoses is to be avoided.  38 C.F.R. § 4.14.  38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 

Where, as here, the ratings appealed are the initial ratings assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for different periods where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509 (2007).

The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45.  See generally DeLuca v. Brown, 8 Vet. App. 202 (1995).  The provisions of 38 C.F.R. § 4.40 state that the disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  According to this regulation, it is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements.  In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion.  Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40.  

The provisions of 38 C.F.R. § 4.45 state that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement.  The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.

In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2015) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities.  The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes.

Initial Rating for Lumbar Spine Disability 

The Veteran's lumbar spine disability is rated as 10 percent disabling from November 1, 2007 to May 21, 2010 and 20 percent disabling from May 21, 2010  pursuant to the criteria of 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5243 (IVDS Based on Incapacitating Episodes).  The Veteran contends that higher initial ratings are warranted because he has pain when lying in one position for too long, difficulty bending over to lift objects, and morning stiffness.  See, e.g., October 2008 Veteran statement.  Initially, the Board finds that May 21, 2010 is the earliest date it is factually ascertainable that an increase in the lumbar spine disability occurred; therefore, a staged rating for the lumbar spine disability is appropriate, as explained in detail below.

Disabilities of the spine are rated under General Rating Formula for DCs 5235 to 5243, unless 5243 is evaluated under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Rating Formula).  Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.

The General Rating Formula for Diseases and Injuries of the Spine, including degenerative disc disease, provides for assignment of a rating of 10 percent rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of body high.  A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  The next higher rating of 40 percent is warranted for disability of the thoracolumbar spine either where forward flexion of the thoracolumbar spine is 30 degrees or less, or where there is favorable ankylosis of the thoracolumbar spine.  A 50 percent rating is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted where there is unfavorable ankylosis of the entire spine.  The criteria are to be applied with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by disease or injury.  38 C.F.R. § 4.71a; DCs 5235-5243. 

Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code.

Note (2) (See also Plate V) provides that, for VA compensation purposes, normal forward flexion of the lumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  The combined range-of-motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range-of-motion of the lumbar spine is 240 degrees.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range-of-motion.

Note (3) provides that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range-of-motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range-of-motion stated in Note (2).  Provided that the examiner supplies an explanation, the examiner's assessment that the range-of-motion is normal for that individual will be accepted.

Note (4) instructs to round each range-of-motion measurement to the nearest five degrees.

Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire lumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  38 C.F.R. § 4.71a.

The IVDS Rating Formula provides a 10 percent disability rating for IVDS with 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 IVDS with 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 IVDS with 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 IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician.  38 C.F.R. § 4.71a. 

Lumbar Spine Disability Rating From November 1, 2007 to May 21, 2010

As stated above, the Veteran is in receipt of a 10 percent rating for the period from November 1, 2007 to May 21, 2010 under DC 5243.  The Veteran contends that a higher initial rating is warranted.  After a review of the lay and medical evidence of record, the Board finds that, for the period from November 1, 2007 to May 21, 2010, the weight of the evidence demonstrates that a disability rating in excess of 10 percent is not warranted for the lumbar spine disability.  See 38 C.F.R. § 4.71a.  

VA treatment records during this period showed complaints of low back pain.  During the August 2007 VA examination, the Veteran reported low back stiffness and weakness, as well as pain which occurred four times per day and each time lasted one hour.  The Veteran described aching and burning pain, which he rated at six out of ten, which was elicited by physical activity and relieved by rest and pain medication.  The Veteran described functional impairment of pain with prolonged standing and sitting. Upon physical examination, the Veteran had 90 degrees of forward flexion, 30 degrees of extension, 30 degrees of right lateral flexion, 30 degrees of left lateral flexion, 30 degrees of right lateral rotation, and 30 degrees of right lateral rotation of the lumbar spine with a combined range of motion of the lumbar spine of 240 degrees.  Pain additionally limited joint function by 5 degrees after repetitive use; therefore, range of motion, to include as due to pain, was 85 degrees of forward flexion, 25 degrees of extension, 25 degrees of right lateral flexion, 25 degrees of left lateral flexion, 25 degrees of right lateral rotation, and 25 degrees of right lateral rotation of the lumbar spine with a combined range of motion of the lumbar spine of 210 degrees.  Lumbar spine joint function was not additionally limited by fatigue, weakness, lack of endurance, or incoordination, to include after repetitive use testing.  See 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, supra.  The VA examiner noted that the Veteran had normal gait and posture with no muscle spasm, and that there was symmetry of spinal motion with normal curvatures of the spine.  The VA examiner diagnosed IVDS with no incapacitation.  

With respect to IVDS, the evidence shows that there were no incapacitating episodes sufficient to warrant a higher disability rating.  While the August 2007 VA examination shows a diagnosis of IVDS, the Veteran reported no incapacitating episodes requiring bed prescribed by a physician as a result of the lumbar spine disability.  Because the weight of the evidence of record shows that the Veteran did not have incapacitating episodes having a total of at least two weeks but less than four weeks during the past 12 months, a disability rating in excess of 10 percent is not warranted based on IVDS during this period.  38 C.F.R. § 4.71a, DC 5243.  

Throughout this period, the Veteran's lumbar spine disability has been manifested by limited painful motion of the lumbar spine, as well as daily flare-ups of pain; however, the record does not show the extent of limitation of motion during this period as required for a higher rating than 10 percent.  The weight of the evidence demonstrates that, during this period, the lumbar spine disability did not more nearly approximate forward flexion of the lumbar spine greater than 30 degrees but not greater than 60 degrees, to include as due to pain, stiffness, and flare-ups of pain, combined range of motion of the lumbar spine less than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, so as to warrant the next higher rating of 20 percent.  38 C.F.R. § 4.71a, DC 5242.  

The Board has considered and weighed the complaints of chronic low back pain and limitations on prolonged sitting and standing.  However, such functional impairment has been considered in arriving at the 10 percent rating for limitation of motion of the lumbar spine based on range of motion measurements, to include based on objective evidence of pain and subjective complaints of flare-ups of pain, resulting in the functional impairment described above.  Even considering the effects of pain, there is nothing in the record that suggests the pain resulted in a functional loss akin the criteria which would support a higher initial disability rating.  Furthermore, neurologic manifestations of the lumbar spine disability have already been separately rated based on neurological involvement in the left lower extremity.  38 C.F.R. § 4.45, 4.71a, DC 5242; DeLuca, 202; Mitchell, 25 Vet. App. 32.  Accordingly, a higher initial rating based upon pain would be inappropriate.

The Board observes that the Veteran was not found to have degenerative arthritis of the lumbar spine.  Arthritis shown by X-ray evidence is rated based on limitation of motion of the affected joint.  38 C.F.R. § 4.71a.  DC 5003 states that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  38 C.F.R. § 4.71a, DC 5003.  The lumbar vertebrae are considered a group of minor joints ratable on parity with a major joint.  38 C.F.R. § 4.45. DC 5003 allows for the assignment of a 20 percent rating only where there is X-ray evidence of arthritis of two or more major joints or two or more minor joint groups. The lumbar spine may only be rated as one major joint.  Accordingly, the evidence does not support a rating in excess of 10 percent for the service-connected lumbar spine disability under DC 5003.  38 C.F.R. § 4.71a.  Because limitation of motion of the lumbar spine has already been considered under DC 5242, a separate rating under DC 5003 based on the same limitation of motion due to pain or flare-ups is prohibited because it constitutes pyramiding.  38 C.F.R. § 4.14; Esteban, 6 Vet. App. at 261- 62.

For these reasons, the preponderance of the evidence weighs against a finding that the lumbar spine disability more closely approximates a 20 percent rating under DCs 5242 or 5243 throughout the initial rating period from November 1, 2007 to May 21, 2010.  See 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206-07. 

Lumbar Spine Disability Rating From May 21, 2010

As stated above, the Veteran is in receipt of a 20 percent rating for the period from May 21, 2010 under DC 5242 based on objective evidence of forward flexion of the thoracolumbar spine limited to 60 degrees.  The Veteran contends that a higher rating is warranted.  After a review of the lay and medical evidence of record, the Board finds that, for the period from May 21, 2010, the weight of the evidence demonstrates that a disability rating in excess of 20 percent is not warranted for the lumbar spine disability.  See 38 C.F.R. § 4.71a.  

During the May 2010 VA examination, the Veteran reported low back pain, which was exacerbated by over-exertion, heavy lifting, repeated bending, prolonged sitting, or prolonged standing, and relieved with rest and pain medication.  The Veteran also reported moderate flare-ups of pain during the winter, which was alleviated by rest, stretching and pain medication.  The Veteran stated that he had decreased motion and stiffness, but denied fatigue, weakness, muscle spasms, and incapacitating episodes.  Upon physical examination, the Veteran had 60 degrees of forward flexion, 10 degrees of extension, 20 degrees of right lateral flexion, 15 degrees of left lateral flexion, 30 degrees of right lateral rotation, and 20 degrees of right lateral rotation of the lumbar spine with a combined range of motion of the lumbar spine of 155 degrees, to include as due to pain and after repetitive use testing.  See 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, supra.  The VA examiner noted that the Veteran had no muscle atrophy or weakness, but had pain with motion and tenderness of the left side of the lumbar spine.  The VA examiner indicated that there was no muscle spasm, localized tenderness, or guarding severe enough to cause abnormal gait or abnormal spinal contour.  The VA examiner diagnosed moderate degenerative disk disease at L5-S1 status-post discectomy.  The VA examiner opined that the lumbar spine disability prevented sports, had a moderate effect on chores and exercise, and had no effect on shopping, recreation, travelling, feeding, bathing, dressing, toileting, and grooming.

During the March 2014 VA examination, the Veteran reported intermittent flare-ups of low back pain on sitting for prolonged periods, attempting to lift heavy objects, or lying in bed for prolonged periods.  Upon physical examination, the Veteran had 70 degrees of forward flexion, 10 degrees of extension, 10 degrees of right lateral flexion, 15 degrees of left lateral flexion, 20 degrees of right lateral rotation, and 20 degrees of right lateral rotation of the lumbar spine with a combined range of motion of the lumbar spine of 145 degrees, to include as due to pain and weakened movement and after repetitive use testing.  See 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, supra.  The VA examiner indicated that there was no muscle spasm, localized tenderness, or guarding severe enough to cause abnormal gait or abnormal spinal contour.  The VA examiner noted that the Veteran had IVDS without any incapacitating episodes over the previous 12 months. 

With respect to IVDS, the evidence shows that there were no incapacitating episodes sufficient to warrant a higher disability rating.  While the VA examinations during this period show a diagnosis of IVDS, the VA examiners noted that there were no incapacitating episodes requiring bed prescribed by a physician as a result of the lumbar spine disability.  Because the weight of the evidence of record shows that the Veteran did not have incapacitating episodes having a total of at least four weeks but less than six weeks during the past 12 months, a disability rating in excess of 10 percent is not warranted based on IVDS during this period.  38 C.F.R. § 4.71a, DC 5243.  

For the rating period from May 21, 2010, the evidence shows that the lumbar spine disability was manifested by forward flexion of 60 degrees, to include as due to pain, stiffness, and weakness, as well as x-ray evidence of degenerative disc disease of the lumbar spine, but no spasm that is severe enough to result in abnormal gait or abnormal spinal contour, which more nearly approximates a 20 percent disability rating.  At no time during the rating period from May 21, 2010, even with consideration of limitation of motion due to pain, stiffness, weakness, and flare-ups of pain did the lumbar spine disability manifest by forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable or unfavorable ankylosis of the entire thoracolumbar spine. 

The Board has considered and weighed the Veteran's complaints of persistent low back pain, stiffness, and weakness that cause the functional impairment discussed above.  However, such symptomatology and functional impairment described above result from the limitation motion of the lumbar spine, to include as due to pain, stiffness, weakness, and all the symptoms described by the Veteran, which results in the 20 percent rating under DC 5242.  38 C.F.R. §§ 4.40, 4.45, 4.59 4.71a; DeLuca, 8 Vet. App. at 206-07.  During this period, the Veteran has not been found to have muscle spasm severe enough to cause antalgic gait or abnormal spinal contour.

The evidence of record shows that the functional range of motion is not additionally limited due to pain, fatigue, or incoordination sufficient to serve as a basis for a higher rating at any point during the rating period from May 21, 2010.  See Mitchell, 25 Vet. App. 32.  Moreover, the VA examiners made specific findings of no ankylosis of the lumbar spine.  For these reasons, the preponderance of the evidence weighs against a finding that the lumbar spine disability more closely approximates the next higher 40 percent rating under DCs 5242 or 5243 for the rating period from May 21, 2010.  See 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206-07. 

The Board observes that the Veteran was found to have degenerative arthritis of the lumbar spine.  However, DC 5003 allows for the assignment of a maximum 20 percent rating only where there is x-ray evidence of arthritis of two or more major joints or two or more minor joint groups; therefore, a higher rating is not available for assignment under DC 5003.  Because limitation of motion of the lumbar spine has already been considered under DC 5242, a separate rating for painful limitation of motion or limitation of motion during flare-ups under DC 5003 is prohibited because it constitutes pyramiding with ratings under the General Formula, which rates on limitation of motion and the same or similar impairments that limit the same functions of the back.  38 C.F.R. § 4.14; Esteban, at 261- 62.

Neurologic Manifestations of the Lumbar Spine Disability

For the entire appeal period, neurologic manifestations of the lumbar spine disability have already been separately rated based on neurological involvement in the left lower extremity (left lower extremity radiculopathy), which is discussed below.  The VA examinations of record show no other neurologic manifestations of the lumbar spine disability.  As such, a separate disability rating for neurologic manifestations, other than left lower extremity radiculopathy, is not warranted for any part of the appeal period. 

Rating for Discectomy Scar 

The Board has considered whether a separate disability rating is warranted for the lumbar discectomy scar for any part of the appeal period.  After a review of the lay and medical evidence of record, the Board finds that the weight of the evidence demonstrates that a separate or higher disability rating is not warranted for the lumbar spine discectomy scar for the entire appeal period.  See 38 C.F.R. § 4.118.  The evidence of record shows that the lumbar discectomy scar is not 144 sq. in. or greater to warrant application of DC 7802 (scars, other than head, face, or neck that are superficial and do not cause limitation of motion).  The scar is not shown to be unstable or painful to warrant application of DC 7803 (superficial, unstable scars) or DC 7804 (superficial, painful on examination scars).  Additionally, the evidence of record does not indicate the scar limits the Veteran's motion to warrant application of DC 7801 (scars, other than head, face, or neck, that are deep or that cause limited motion) or DC 7805 (scars, other, which are rated on limitation of function of the affected part).  Therefore, the evidence does not support a higher or separate rating under DCs 7801, 7802, 7803, 7804, or 7805.  Id.

Initial Rating for Left Lower Extremity Radiculopathy

The Veteran's left lower extremity radiculopathy disability is currently rated under DC 8522.  Mild incomplete paralysis of the musculocutaneous nerve warrants a noncompensable rating; moderate incomplete paralysis warrants a 10 percent rating; and severe incomplete paralysis warrants a 20 percent rating.  Complete paralysis of the musculocutaneous nerve with eversion of foot weakened warrants a 30 percent rating.  38 C.F.R. § 4.124a, DC 8522.

In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances.  38 C.F.R. § 4.120.  Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function.  With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves.  The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 

When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree.  In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis.  The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis.  38 C.F.R. § 4.123.

The Veteran contends that a higher rating is warranted for the left lower extremity radiculopathy because he has residual numbness in the left foot and calf as a result of spinal injury.  After a review of all the evidence, lay and medical, the Board finds that the criteria for a disability rating in excess of 10 percent for left lower extremity radiculopathy have not been met at any time during the appeal period because the Veteran's left lower extremity radiculopathy has not been manifested by symptoms that more nearly approximate severe incomplete paralysis of the musculocutaneous nerve or moderate incomplete paralysis of the sciatic nerve.  38 C.F.R. § 4.124a, DC 8520, 8522.

The August 2007 VA examiner indicated that there was no evidence of radiating pain to the lower extremities upon examination.  The VA examiner noted sensory deficit in the lateral side of the left leg and foot, but indicated that left lower extremity reflexes and muscles were normal.  The VA examiner opined that the superficial peroneal nerve is the most likely peripheral nerve involved. 

During the May 2010 VA examination, the Veteran reported numbness in the left lower extremity.  Upon examination, the VA examiner found full normal strength, normal vibration and position, normal reflexes, and decreased sensation to light touch in the left lower extremity.  There was no muscle atrophy or abnormal muscle tone or bulk.  The VA examiner indicated that there was no paralysis, neuritis, or neuralgia in the left lower extremity and that the left lower extremity dysfunction had no effect on the Veteran's occupation and usual daily activities. 

During the March 2014 VA examination, the Veteran reported intermittent mild radicular pain in the left leg, which radiated down the back to the left ankle.  Upon examination, the VA examiner found normal reflexes and muscle strength in the left lower extremity, and assessed normal sensation to light touch in the upper anterior thigh, knee, and lower leg/ankle, and decreased sensation to light touch in the left foot/toes, as well as decreased tactile and vibration sensation over the left toes.  The left lower extremity straight leg raising test was positive.  The VA examiner further assessed mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness in the left lower extremity.  The VA examiner opined that the left lower extremity radiculopathy was mild. 

The Board finds that the disability picture provided by the above-referenced VA examination reports, as well as the VA treatment records more nearly approximates moderate incomplete paralysis of the musculocutaneous nerve than severe incomplete paralysis, so does not warrant an initial rating in excess of 10 percent for the left lower extremity radiculopathy.  Throughout the appeal period, the Veteran had pain, numbness, and weakness in the left lower extremity.  Moreover, medical findings throughout the appeal period consistently showed mildly decreased sensation and normal strength with no muscle atrophy in the left lower extremity.  The VA examination reports also showed normal tendon reflexes of the left lower extremity.  All of these symptoms and impairment more nearly approximates moderate incomplete paralysis of the musculocutaneous nerve of the left lower extremity and do not more nearly approximate severe incomplete paralysis.  38 C.F.R. § 4.124a, DC 8522.

Because the March 2014 VA examination report shows involvement of the left lower extremity sciatic nerve, the Board has considered whether a higher rating under DC 8520 is warranted.  Under DC 8520, mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating; moderate incomplete paralysis warrants a 20 percent rating; moderately severe incomplete paralysis warrants a 40 percent rating; and severe incomplete paralysis with marked muscular atrophy warrants a 60 percent rating.  An 80 percent rating is warranted for complete paralysis of the sciatic nerve where the foot dangles and drops with no active movement possible of the muscles below the knee and flexion of the knee is weakened or lost.  38 C.F.R. § 4.124a, DC 8520.  In this case, the March 2014 VA examiner assessed mild incomplete paralysis of the sciatic nerve, which is consistent with the 10 percent rating assigned for the left lower extremity radiculopathy.  At no point during the entire appeal period does the evidence otherwise show symptoms or functional impairment that more nearly approximates moderate incomplete paralysis of the left lower extremity sciatic nerve so as to warrant the next higher rating of 20 percent under DC 8520.  Id.

Based on the foregoing, a rating in excess of 10 percent for left lower extremity radiculopathy is not warranted for the entire appeal period because, as discussed above, the weight of the lay and medical evidence does not show the severity required for a rating in excess of 10 percent based on the relevant symptomatology and impairment under DCs 8522 or 8520.  38 C.F.R. § 4.124a.

Initial Rating for Right Ear Hearing Loss

The Veteran is presently in receipt of a noncompensable evaluation for his right ear hearing loss pursuant to 38 C.F.R. § 4.85, DC 6100.

The assignment of disability ratings for service-connected hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Evaluations for defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000, and 4,000 Hertz. 

The rating schedule establishes eleven auditory acuity levels designated from level I for essentially normal auditory acuity to level XI for profound deafness.  38 C.F.R. § 4.85.  Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns).

Table VII, "Percentage Evaluations for Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poorer hearing.  The percentage evaluation is located at the point where the row and column intersect.

 When the pure tone thresholds at the four specified frequencies (1000, 2000, 3000, and 4000 hertz) are 55 decibels or more, or when the pure tone thresholds are 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz, 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 highest Roman numeral.  38 C.F.R. § 4.86.  However, considering the Veteran's audiological evaluation results as noted below, 38 C.F.R. § 4.86 does not apply to this case.

The Veteran underwent a VA audiological examination in August 2007.  The examination showed pure tone thresholds, in decibels, as follows:


HERTZ

1000
2000
3000
4000
RIGHT
10
20
25
50
LEFT
15
15
20
15

His speech discrimination score was 96 percent in the right ear.

Applying the results of the examination to the tables laid out by the regulations shows level I hearing loss for his right ear (pure tone average of 26.25).  His non-service-connected left ear is assigned a Roman numeral for hearing impairment of I.  Thus, his right ear hearing loss is rated as noncompensable under DC 6100.  38 C.F.R. § 4.85.

The Veteran underwent another VA audiological examination in May 2010.  The examination showed pure tone thresholds, in decibels, as follows:




HERTZ

1000
2000
3000
4000
RIGHT
5
15
10
45
LEFT
10
10
20
30

His speech discrimination score was 100 percent in the right ear.

Applying the results of the examination to the tables laid out by the regulations shows level I hearing loss for his right ear (pure tone average of 18.75).  His non-service-connected left ear is assigned a Roman numeral for hearing impairment of I.  Thus, his right ear hearing loss is rated as noncompensable under DC 6100.  38 C.F.R. § 4.85.

The Veteran underwent another VA audiological examination in March 2014.  The examination showed pure tone thresholds, in decibels, as follows:


HERTZ

1000
2000
3000
4000
RIGHT
10
10
20
50
LEFT
20
10
30
50

His speech discrimination score was 100 percent in the right ear.

Applying the results of the examination to the tables laid out by the regulations shows level I hearing loss for his right ear (pure tone average of 22.5).  His non-service-connected left ear is assigned a Roman numeral for hearing impairment of I.  Thus, his right ear hearing loss is rated as noncompensable under DC 6100.  38 C.F.R. § 4.85.

While the Board acknowledges the hearing difficulties that the Veteran has reported, such as difficulty hearing in noisy places, the ratings for hearing loss are based on a mechanical application of the tables provided by law.  The Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record.  Lendenmann, 3 Vet. App. 345.

Based on the foregoing, as the preponderance of the evidence is against this claim, the benefit of the doubt doctrine does not apply, and the claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Initial Rating for Seasonal Allergic Rhinitis

The Veteran is currently assigned a noncompensable disability rating under DC 6522 for the entire period on appeal.  See 38 C.F.R. § 4.97.  Allergic rhinitis without polyps but with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side warrants a 10 percent evaluation; and allergic rhinitis with polyps warrants a 30 percent evaluation.  38 C.F.R. § 4.97, DC 6522.

The Veteran contends that his seasonal allergic rhinitis warrants a compensable evaluation because he has rhinitis attacks during the months from February through June of every year.  Specifically, the Veteran stated that, during these attacks, the nasal passages are usually completely obstructed and he has discharge from the nose, eyes, ears, as well as repetitive sneezing.  See September 2011 Board hearing transcript. 

The Board finds that the Veteran's seasonal allergic rhinitis does not warrant a compensable evaluation because seasonal allergic rhinitis has not been productive of nasal obstruction or nasal polyps during the entire appeal period.

During the August 2007 VA examination, the Veteran stated he has sinusitis, which occurs one time per and lasts for 16 week.  During the sinusitis episodes, he is not incapacitated, but has headaches with sneezing and interference with breathing through the nose.  The Veteran indicated that no antibiotic treatment lasting four to six weeks was needed for his sinusitis and that he had no purulent discharge from the nose, hoarseness of the voice, pain, or crusting.  The Veteran indicated that he took Allegra for his sinusitis.  Upon examination, the Veteran had no nasal obstruction, no deviated septum, no partial loss of the nose, no partial loss of the ala, no nasal polyps, no scars, and no disfigurement.  Nasal x-rays were within normal limits. 

During the May 2010 VA examination, the Veteran described a history of seasonal allergic rhinitis, mostly during spring and fall, with sneezing, runny nose, sinus pressure, and burning eyes.  He tried to stay indoors during allergy season and took Allegra, Afrin, and Flonase during allergy season.  Upon examination, the Veteran had no signs of nasal obstruction, nasal polyps, septal deviation, permanent hypertrophy of turbinates from bacterial rhinitis, or tissue loss, scarring, or deformity of the nose. 

During the March 2014 VA examination, the Veteran reported that his symptoms had progressively worsened over the years and that his symptoms were worse from February to May of every year when the pollen count was high.  The Veteran indicated that he used Allegra daily and frequently used Flonase along with Allegra during the period from February to May.  Upon examination, the VA examiner noted that the Veteran had no nasal obstruction on either side, hypertrophy of the nasal turbinates, or nasal polyps. 

Based on the foregoing, the Board finds that the evidence does not reflect obstruction of the nasal passages.  While the Veteran asserted that he has complete nasal obstruction during allergy attacks, the VA examiners found no indication of any nasal obstruction in August 2007, May 2010, and March 2014.  In an October 2008 statement, the Veteran indicated that in order to observe his nasal obstruction, he has to be afforded a VA examination during the months from February to June.  The Veteran was indeed scheduled for VA examinations in May 2010 and March 2014, which continued to show no indication of nasal obstruction.  Based on the foregoing, the Board finds that the Veteran's assertions of complete or even partial nasal obstruction not credible.   

Further, VA examiners specifically noted that there were no polyps and the Veteran has reported that polyps were removed prior to the appeal period.  See e.g. September 2011 Board hearing transcript.  Therefore, the preponderance of the evidence is against a compensable rating for seasonal allergic rhinitis for the entire appeal period.  The Veteran's seasonal allergic rhinitis has been manifested by, at worst, times of discharge from the nose, eyes, ears, as well as repetitive sneezing, runny nose, sinus pressure, and burning eyes.  Accordingly, the Board finds that the weight of the evidence, lay and medical, does not warrant a compensable rating for seasonal allergic rhinitis for the entire appeal period.  As such, the claim for higher initial rating must be denied.  As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

Extraschedular Evaluation

Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the rating schedule is sufficient.  See 38 C.F.R. § 4.20, 4.27.  For exceptional cases, VA has authorized the assignment of extraschedular ratings and provided the following guidance for awarding such ratings.

To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director of Compensation, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities.  The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b).

The Court explained that a "determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry."  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 extraschedular rating is warranted.  Neither the RO nor the Board is permitted to assign an extraschedular rating in the first instance; rather the matter must initially be referred to those officials who possess the delegated authority to assign such a rating.  See Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Anderson v. Shinseki, 22 Vet. App. 423 (2009). 

Here, the Board finds that, the symptomatology and impairment caused by the Veteran's service-connected disabilities on appeal are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required.  See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). 

The Veteran's lumbar spine disability has manifested in degenerative disc disease of the lumbar spine and painful movement, and limitation of motion.  The schedular criteria for rating the lumbar spine disability specifically provide for ratings based on the presence of painful motion, whether or not such pain radiates, limitations of motion of the spine including due to pain and other orthopedic factors (38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca); other clinical findings such as muscle spasm, guarding, abnormal gait, and abnormal spinal contours; and on the basis of incapacitating episodes due to IVDS.  In this case, comparing the Veteran's disability level and symptomatology and impairment of the lumbar spine to the rating schedule, the degree of disability of the lumbar spine throughout the entire appeal period under consideration is contemplated by the rating schedule and the assigned ratings are, therefore, adequate.  Moreover, the symptom of stiffness is considered as similar to pain or painful motion.  The Board has additionally considered ratings under alternate schedular rating criteria.  See 38 C.F.R. § 4.20 (schedular rating criteria provides for rating by analogy based on similar functions, anatomical location, and symptomatology).  Therefore, the Board finds that the record does not reflect that the lumbar spine disability is so exceptional or unusual as to warrant referral for consideration of the assignment of a higher disability rating on an extraschedular basis.

With respect to the left lower extremity radiculopathy disability, a comparison between the level of severity and symptomatology of the Veteran's symptoms with the established criteria found in the rating schedule for left lower extremity radiculopathy shows that the rating criteria reasonably describe the disability and contemplate the Veteran's mild to moderate sensory and motor symptoms of weakness, pain, and numbness, as well as impairment associated with left lower extremity radiculopathy.  Therefore, the Board finds that the record does not reflect that the Veteran's left lower extremity radiculopathy is so exceptional or unusual as to warrant referral for consideration of the assignment of a higher rating on an extraschedular basis. 

As to the right ear hearing loss disability, although, as noted above, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing, VA policy requires that VA audiologists fully describe the functional effects caused by a hearing disability in his or her final report.  Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).  This practice facilitates potential application of 38 C.F.R. § 3.321(b) (2015) in considering whether referral for an extra-schedular rating is warranted.  Id. 

In this regard, the August 2007 VA examiner specifically addressed the functional effects caused by the Veteran's right ear hearing loss disability by noting that the Veteran reported difficulty understanding conversational speech in certain environments.  The May 2010 VA examiner noted that the Veteran reported that his right ear hearing loss caused him to speak loudly.  The March 2014 VA examiner noted that the Veteran's right ear hearing loss had no impact on the Veteran's ordinary conditions of daily life, including the ability to work. 

The Veteran has not submitted any statements that describe the effect that his hearing loss has caused regarding occupational or social functioning aside from the functional impairment described above.  In his Notice of Disagreement and VA Form 9, he provided no discussion of his symptoms; rather, he merely requested an increase in the rating assigned.  During the September 2011 Board hearing, the Veteran indicated that he was using hearing aids.  Consequently, the Board finds that the functional effects of his right ear hearing loss disability are adequately addressed by the August 2007, May 2010, and March 2014 VA examination reports and are sufficient for the Board to consider whether referral for an extraschedular rating is warranted under 38 C.F.R. § 3.321(b).

The schedular rating criteria specifically provides for ratings based on all levels of hearing loss, including exceptional hearing patterns which are not demonstrated in this case, and as measured by both audiological testing and speech recognition testing.  Speech recognition testing is a schedular rating criterion that recognizes such an inability to understand certain words in conversation.  For these reasons, the Board finds that the schedular rating criteria in this case are adequate to rate the Veteran's right ear hearing loss, and referral for extraschedular consideration is not necessary.

As discussed above, the evidence regarding functional impairment has been considered, and is measured by the schedular rating criteria.  The decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability.  The regulatory history of 38 C.F.R. §§ 4.85 and 4.86 includes revisions, effective June 10, 1999.  See 64 Fed. Reg. 25206 (May 11, 1999).  In forming these revisions, VA sought the assistance of the Veterans Health Administration (VHA) in developing criteria that contemplated situations in which a veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids.  VHA had found through clinical studies of veterans with hearing loss that, when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment.  The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA.  The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting.  59 Fed. Reg. 17295 (April 12, 1994).  Accordingly, the Board finds that functional impairment due to right ear hearing loss that is compounded by background or environmental noise is a disability picture that is considered in the current schedular rating criteria; therefore, the Veteran's struggle to comprehend verbal conversations and other noises is a factor contemplated in the regulations and schedular rating criteria.  

While the Veteran contends that his ability to hear has worsened as evidenced by the use of hearing aids, diminished auditory acuity and speech recognition testing are the foundation of the schedular criteria.  Moreover, the testing is to be performed without the use of hearing aids.  See 38 C.F.R. § 4.85(a).  The scores upon which the Veteran is rated represent a rating made on the worst possible objective measure of performance.  In other words, the Veteran does not have any symptoms or impairment from the service-connected right ear hearing loss disability that are unusual or are different from those contemplated by the schedular rating criteria, namely, audiometric testing at a range of decibel levels and speech recognition testing.

With regard to the seasonal allergic rhinitis disability, the schedular rating criteria specifically provides for ratings based on obstruction of nasal passage and presence or absence of polyps.  The weight of the lay and medical evidence demonstrates that the seasonal allergic rhinitis disability did not more nearly approximate obstruction of nasal passage or presence of polyps at any point during the appeal period.  Therefore, the Board finds that the record does not reflect that the Veteran's seasonal allergic rhinitis disability is so exceptional or unusual as to warrant referral for consideration of the assignment of a higher rating on an extraschedular basis.

The Board also finds that the rating schedule is adequate, even in regard to the collective and combined effect of all of the Veteran's service connected disabilities, and that referral for extraschedular consideration of any combined effect is not warranted under the circumstances of this case.  Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014).

Finally, entitlement to total disability rating based upon individual unemployability (TDIU) is an element of all increased rating claims.  See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  In this case, neither the Veteran nor the record raises the issue that he is unemployable due solely to his service-connected disabilities on appeal.  The record indicates that the Veteran is currently employed.  The March 2014 VA examiner indicated that the seasonal allergic rhinitis disabilities affects the Veteran's ability to work in that flare-ups of symptoms affects the Veteran's focus and concentration and thereby impacts the quality of his work.  The March 2014 VA examiner also indicated that the lumbar spine disability affects the Veteran's ability to work in that prolonged sitting aggravated back pain and, therefore, the Veteran has to get up frequently to relieve back pain, which interrupts the flow of his work and affects his focus and concentration and thereby impacts the quality of his work

Therefore, the record reflects that the Veteran is currently working with some limitation.  As stated above, the schedular rating criteria are intended to compensate for average impairments in earning capacity resulting from service-connected disabilities in civil occupations.  38 U.S.C.A. § 1155.  As such, the Veteran is already being compensated for any difficulties at work resulting from the service-connected disabilities.  For the reasons above, and in light of the fact that the Veteran is currently working, the Board finds that a claim for a TDIU has not been raised.  Accordingly, remand or referral of a claim for TDIU is not necessary as there is no evidence of unemployability due to the service-connected disabilities.


ORDER

A higher initial disability rating in excess of 10 percent for the lumbar spine disability for the initial rating period from November 1, 2007 to May 21, 2010 is denied; a higher initial disability rating in excess of 20 percent for the initial rating period from May 21, 2010 is denied.  

A higher initial disability rating in excess of 10 percent for left lower extremity radiculopathy for the entire appeal period is denied.

A compensable initial rating for right ear sensorineural hearing loss for the entire appeal period is denied.

A compensable initial rating for seasonal allergic rhinitis for the entire appeal is denied.


REMAND

Higher Initial Evaluation for Tinnitus

The April 2008 rating decision granted service connection for tinnitus and assigned an initial rating of 10 percent effective November 1, 2007.  In an October 2008 statement, the Veteran indicated disagreement with the initial rating assigned for tinnitus and requested a higher rating.  The Veteran has not been issued a statement of the case (SOC) for his appeal for a higher rating for tinnitus.  An unprocessed notice of disagreement should be remanded, not referred, to the AOJ for issuance of a SOC.  Manlincon v. West, 12 Vet. App 238, 240-241 (1999).  Thus, this claim must be remanded for issuance of a statement of the case.  See 38 C.F.R. §§ 3.160(c), 19.26 (2015).

Accordingly, the issue of entitlement to a higher initial rating for tinnitus is REMANDED for the following action:

Issue the Veteran a statement of the case addressing the issue of entitlement to a higher initial rating for tinnitus inform the Veteran and his representative of the procedures necessary to perfect a substantive appeal of this issue.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate 

action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



______________________________________________
R. FEINBERG
Acting Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs