Citation Nr: 1613004	
Decision Date: 03/31/16    Archive Date: 04/07/16

DOCKET NO.  09-30 667	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1.  Entitlement to an effective date prior to October 24, 2011, for the grant of service connection for cervical degenerative disc disease.

2.  Whether new and material evidence has been received to reopen a claim for entitlement to service connection for diabetes mellitus, type II.

3.  Entitlement to service connection for residuals of a head injury.

4.  Entitlement to service connection for headaches, to include as secondary to his service-connected disabilities.

5.  Entitlement to service connection for a left ear disability requiring left ear tubes.

6.  Entitlement to service connection for a bilateral leg disability.

7.  Entitlement to service connection for a bilateral knee disability.

8.  Entitlement to service connection for a left arm disability.

9.  Entitlement to service connection for a right arm disability.

10.  Entitlement to service connection for an acquired psychiatric disorder.

11.  Entitlement to service connection for bladder cancer, to include due to exposure to contaminated water at Camp Lejeune.

12.  Entitlement to an initial rating in excess of 20 percent for cervical degenerative disc disease.

13.  Entitlement to a rating in excess of 40 percent for degenerative disc disease of the thoracolumbar spine, with post traumatic changes T10.  

14.  Entitlement to a compensable rating for bilateral hearing loss. 

15.  Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU). 


REPRESENTATION

Appellant represented by:	J. Michael Woods


ATTORNEY FOR THE BOARD

K. Marenna, Counsel



INTRODUCTION

The Veteran served on active duty from July 1957 to June 1967.

These matters come before the Board of Veterans' Appeals (Board) on appeal rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.  In a May 2013 rating decision, the RO granted entitlement to service connection for degenerative disc disease of the cervical spine, effective October 24, 2011.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issue of left ear disability requiring left ear tubes is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.


FINDINGS OF FACT

1.  An original claim for entitlement to service connection for a cervical spine disability was received on October 24, 2011; VA received no communication that constituted a formal or informal claim for service connection for a cervical spine disability prior to October 24, 2011.

2.  A September 2009 rating decision denied the Veteran's claim for entitlement to service connection for diabetes mellitus, and the Veteran did not file a timely notice of disagreement with the rating decision.  Evidence received subsequent to the September 2009 rating decision is new, but is not material, as it does not raise a reasonable possibility of substantiating the claim.

3.  The Veteran does not have residuals of a head injury related to his active service.

4.  The Veteran has headaches that are caused by his service-connected cervical degenerative disc disease.

5.  A bilateral leg disability was not present in service or until years thereafter and is not etiologically related to any incident of active duty service, or caused or aggravated by a service-connected disability.

6.  A bilateral knee disability was not present in service or until years thereafter and is not etiologically related to any incident of active duty service.

7.  A left arm disability was not present in service or until years thereafter and is not etiologically related to any incident of active duty service.

8.  A right arm disability was not present in service or until years thereafter and is not etiologically related to any incident of active duty service.

9.  The Veteran has a depressive disorder that is caused by his service-connected degenerative disc disease of the thoracolumbar spine with post traumatic change T10, cervical degenerative disc disease and tinnitus.

10.  Bladder cancer was not present in service or until years thereafter and is not etiologically related to any incident of active duty service, to include service at Camp Lejeune.

11.  The Veteran's cervical spine disability has not been shown to be productive of forward flexion of the cervical spine of 15 degrees or less or favorable ankylosis of the entire cervical spine.

12.  The Veteran's thoracolumbar spine disability was not manifested by unfavorable ankylosis of the entire thoracolumbar spine or intervertebral disc syndrome with incapacitating episodes having a total duration of six weeks during a twelve month period. 

13.  The Veteran has demonstrated, at worst, Level I hearing acuity in the right ear and Level IV hearing acuity in the left ear.

14.  The Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation consistent with his education and occupational experience.


CONCLUSIONS OF LAW

1.  The criteria for an effective date prior to October 24, 2011 for the award of service connection for degenerative disc disease of the cervical spine are not met.  38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.400 (2015).

2.  The September 2009 rating decision is final as to the claim of service connection for diabetes mellitus.  New and material evidence has not been received since the September 2009 rating decision to reopen the claim of entitlement to service connection for diabetes mellitus.  38 U.S.C.A. § 5108, 7105 (West 2014); 38 C.F.R. §§ 3.156(a), 20.302, 20.1103 (2015).  

3.  The criteria for service connection for residuals of a head injury have not been met.  38 U.S.C.A. §§ 1110, 1131, 1112, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.303 , 3.307, 3.309 (2015). 

4.  The criteria for service connection for headaches have been met.  38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.102, 3.303, 3.304, 3.310 (2015).

5.  A bilateral leg disability was not incurred in or aggravated by active military service or a service-connected disability, nor may its incurrence or aggravation be presumed.  38 U.S.C.A. §§ 1110, 1131, 1112, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.303 , 3.307, 3.309, 3.310 (2015). 

6.  A bilateral knee disability was not incurred in or aggravated by active military service, nor may its incurrence nor may its incurrence or aggravation be presumed.  38 U.S.C.A. §§ 1110, 1131, 1112, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.303 , 3.307, 3.309 (2015). 

7.  A left arm disability was not incurred in or aggravated by active military service, nor may its incurrence nor may its incurrence or aggravation be presumed.  38 U.S.C.A. §§ 1110, 1131, 1112, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.303 , 3.307, 3.309 (2015). 

8.  A right arm disability was not incurred in or aggravated by active military service, nor may its incurrence nor may its incurrence or aggravation be presumed.  38 U.S.C.A. §§ 1110, 1131, 1112, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.303 , 3.307, 3.309 (2015). 

9.  The criteria for service connection for major depressive disorder have been met.  38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.102, 3.303, 3.304, 3.310 (2015).

10.  Bladder cancer was not incurred in or aggravated by active military service, nor may its incurrence nor may its incurrence or aggravation be presumed.  38 U.S.C.A. §§ 1110, 1131, 1112, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.303 , 3.307, 3.309 (2015). 

11.  The criteria for a rating in excess of 20 percent for the service-connected cervical spine disability have not been met. 38 U.S.C.A. §§ 1155, 5110 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5243 (2015). 

12.  The criteria for a rating in excess of 40 percent for the service-connected degenerative disc disease of the thoracolumbar spine are not met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235 (2015).

13.  The criteria for an initial compensable disability rating for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321 , 4.1, 4.7, 4.31, 4.85, 4.86, Diagnostic Code 6100 (2015).

14.  The criteria for an extraschedular TDIU have been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16(b) (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

As to the claims of entitlement to service connection for headaches and depression, and entitlement to a TDIU, those claims have been granted, as discussed below.  As such, the Board finds that any defect related to VA's duties to notify and assist under the VCAA on that claim is moot.  See 38 U.S.C. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); Mlechick v. Mansfield, 503 F.3d 1340 (2007).

VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claims.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015).

When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015).  The United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

The Court observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); see also 38 U.S.C. § 5103(a).  Compliance with the first Quartuccio element requires notice of these five elements.  See id.  

Prior to initial adjudication of the service connection claims, letters dated in October 2010, May 2012 and October 2014 fully satisfied the duty to notify provisions.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187; Dingess/Hartman, 19 Vet. App. at 490.  

VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's increased rating claims.  Appropriate notice was provided in May 2008 for the claim for a compensable rating for bilateral hearing loss and in January 2010 letters for the claim for a higher rating for his thoracolumbar spine disability.

In regard to the Veteran's claims for a higher rating for a cervical spine disability and an earlier effective date for the grant of service connection for a cervical spine disability, 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).  

VA's duty to assist has been satisfied.  The Veteran's service treatment records and VA medical records are in the file.  Private medical records identified by the Veteran have been obtained, to the extent possible.  The Veteran's Social Security Administration records have been associated with the file.  The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims.

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  If VA provides a claimant with an examination in accordance with the duty to assist, the examination must be adequate.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  The probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

The Veteran was afforded medical examinations in August 2014, on bladder cancer, and November 2014, on the Veteran's left shoulder disability, to obtain opinions as to the etiology of the conditions.  The examiners obtained an accurate history.  The claims file was reviewed.  The examiners laid a full rationale for the conclusions that were reached.  Therefore, the Board finds that the examinations are adequate.  See Nieves-Rodriguez, 22 Vet. App. at 304.  

The Veteran did not receive examinations as to the etiology of his other service connection claims.  However, as discussed below, the Board finds there is no  there is no credible evidence of the disabilities in service, or that the disabilities might be related to the Veteran's service or a service-connected disability.  Therefore, the  low threshold standard for determining when an examination to secure a medical is necessary is not met and an examination to secure a medical opinion in the matter is not necessary.  See McLendon v. Nicholson, 20 Vet. App. 79  (2006). 

In regard to the Veteran's increased rating claims, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the appellant.  Green v. Derwinski, 1 Vet. App. 121 (1991).  In addition, where the evidence of record does not reflect the current state of the appellant's disability, a VA examination must be conducted.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2014).

The RO provided the Veteran with appropriate VA examinations evaluating his cervical spine, thoracolumbar spine and bilateral hearing loss disabilities.  The Board finds the VA examination reports were based on a thorough examination, a description of the Veteran's pertinent medical history, and appropriate diagnostic tests.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one).

The Veteran has not reported receiving any recent treatment specifically for the disabilities and there are no records suggesting an increase in disability has occurred as compared to the prior VA examination findings.  The VA examination reports are thorough and findings pertinent to the rating criteria.  The examinations in this case are adequate upon which to base a decision.

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007).

The Board has thoroughly reviewed all the evidence in the appellant's claims folder.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).  The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


II.  Earlier Effective Date

The Veteran asserts that he is entitled to an effective date prior to October 24, 2011, for the grant of service connection for cervical degenerative disc disease.  For the reasons that follow, the Board finds that an earlier effective date for the grant of service connection for cervical degenerative disc disease is not warranted.

The Veteran filed a claim for service connection for a cervical spine disability on October 24, 2011.  In a May 2013 rating decision, the RO granted entitlement to service connection for degenerative disc disease of the cervical spine with an evaluation of 20 percent effective October 24, 2011, the date of the Veteran's claim.  The Veteran's claim was granted based on a positive April 2013 VA opinion indicating a nexus between the cervical spine disability and service.

Unless specifically provided otherwise, the effective date of an award based on an original claim for service connection "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor."  38 U.S.C.A. § 5110(a).  The implementing regulation clarifies that the effective date of an evaluation and an award of compensation based on an original claim "will be the date of receipt of the claim or the date entitlement arose, whichever is later."  38 C.F.R. § 3.400. 

The effective date for an award of disability compensation based on an original claim for direct service connection is the day following separation from active service or the date entitlement arose if a claim is received within one year after separation from service.  Otherwise, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110 (b)(1) ; 38 C.F.R. § 3.400(b)(2)(i) . A "claim" is defined in the VA regulations as "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit."  38 C.F.R. § 3.1(p).

The Veteran is seeking an effective date prior to October 24, 2011 for the grant of service connection for degenerative disc disease of the cervical spine.  A May 2013 rating decision granted the Veteran's claim for service connection for a cervical spine disability with an effective date of October 24, 2011, the date of his claim.  The Veteran has not presented any specific arguments as to why he believes he is entitled to an earlier effective date.

After reviewing the evidence of record, the Board finds that prior to October 24, 2011, there were no prior documents that might be construed as a claim, informal claim or intent to file a claim of entitlement to service connection for a cervical spine disability.  38 C.F.R. § 3.1(p).  The Veteran earlier filed a claimed for entitlement to service connection for a back disorder, which was granted as a thoracolumbar spine disability.  At that time, the Veteran did not note having a cervical spine disability.  

The Board is cognizant that 38 C.F.R. § 3.157(b)  provides that the date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital may be accepted as the date of receipt of a claim.  The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission.  See Sears  v. Principi, 16 Vet. App. 244, 247 (2002) (stating that 38 C.F.R. § 3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service-connected rating where service connection has already been established).  That is not the situation here, as there is no indication that the issue of service connection for cervical spine disability was addressed prior to October 24, 2011.  Accordingly, the provisions of section 3.157(b) do not apply in this case.

There is no evidence the Veteran filed a claim for entitlement to service connection for a cervical spine disability prior to October 24, 2011.  As stated above, the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400.  Thus, the effective date can be no earlier than the date of receipt of the claim, which was October 24, 2011.  Therefore, the Veteran's claim for an earlier effective date must be denied.

III.  New and Material Evidence

The Veteran has filed a claim to reopen his claim for entitlement to service connection for diabetes mellitus.  For the reasons that follow, the Board finds that new and material evidence has not been received.

Legal Criteria

A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108.  The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim.  Knightly v. Brown, 6 Vet. App. 200 (1994).

New evidence means existing evidence not previously submitted to agency decision makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low."  See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement.  Id. at 118.

Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record.  Evans v. Brown, 9 Vet. App. 273 (1996).  Finally, for the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

Analysis

The Veteran's claim for entitlement to service connection for diabetes mellitus was initially denied in a September 2009 rating decision.  The Veteran did not file a notice of disagreement with the rating decision, and it became final.  38 U.S.C.A. § 7105  (West 2014); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302 (2015). 

The Veteran did not present any specific new arguments to support his claim for entitlement to service connection for diabetes mellitus.  Since the last final rating decision, new private and VA treatment records have been added to the claims file.  The records show that the Veteran has been diagnosed with diabetes mellitus.  However, the Veteran had a diagnosis of diabetes mellitus at the time of the last final rating decision in September 2009.  The private and VA treatment records do not address the etiology of the diabetes mellitus, or indicate that it is related to service.  Consequently, the new private and VA treatment records are not material to the Veteran's claim.  

There is no new and material evidence supporting the Veteran's claim that he has diabetes mellitus, to include due to exposure to Agent Orange in service.  In his original claim in March 2009, the Veteran stated that he believed he was exposed to Agent Orange when he performed maintenance on aircraft just returning from Vietnam.  However, no additional evidence relating to this issue has been received since the last final rating decision.  

The Veteran has asserted that his diabetes is related to service, but he previously asserted this at the time of the last final rating decision.  Therefore, his statements are not new and material evidence.

As the Board finds that new and material evidence has not been received, the Veteran's claim to reopen his claim for entitlement to service connection for diabetes mellitus, is denied.

IV.  Service Connection Claims

Legal Criteria

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247 (1999).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).

Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of (i) the existence of a chronic disease in service during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or evidence of continuity of symptomatology.  If the disability claimed is not considered to be a chronic disease under 38 C.F.R. § 3.309, credible lay evidence of continuous symptoms may establish service connection. 

Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.  

Under 38 C.F.R. § 3.310, service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury, or for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability.  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995).

Residuals of a Head Injury

The Veteran is seeking service connection for residuals of a head injury.  He has stated that he injured his head while in service in a jeep accident.  For the reasons that follow, the Board finds that service connection is not warranted.

To prevail on the issue of service connection, there must be medical evidence of a current disability.  See Brammer v. Derwinski, 3 Vet. App. 223 (1992); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (a "current disability" means a disability shown by competent medical evidence to exist at the time of the award of service connection).  In this case, other than the Veteran's assertions, the record contains no evidence of a diagnosis of residuals of a head injury, at any time during the appeal period.  See McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that a current disability exists if the diagnosed disability is present at the time the claim is filed or during the pendency of the claim).  Without a current showing of residuals of a head injury, service connection is not warranted in this matter.

The Veteran has asserted he has headaches due to an in-service head injury.  See November 2011 statement.  For the reasons discussed below, the Board finds that service connection is separately warranted for headaches.  The Veteran has not reported any other symptoms related to a head injury.

The Board finds the Veteran's statements regarding his in-service jeep accident to be credible, and has considered the buddy statements indicating the Veteran was unconscious after a jeep accident.  However, no head injury or residuals were noted in his service treatment records or separation examination report.  An August 1962 service treatment record indicated the Veteran had  back pain from an old jeep accident.  No head symptoms were noted.

As there is no evidence of any current, residuals of a head injury, or evidence of a head injury in service, service connection is not warranted.  Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim.  Consequently, the benefit-of-the-doubt rule is not applicable, and the claim must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Headaches

The Veteran asserts that he is entitled to service connection for headaches.  For the reasons that follow, the Board finds that service connection is warranted.

In a February 2012 statement, the Veteran stated that he was involved in a Jeep accident in service and knocked out.  He stated that he would get severe headaches and continued to get them.  He also stated that a VA physician told him that the root cause of his headaches were maybe from his cervical spine.  The Veteran has stated that his migraines began while he was in service after a motor vehicle accident that injured his spine.  He reported the migraines had become more frequent and severe over the years.  See October 2015 private opinion.

As a lay person, the Veteran is competent to diagnose headaches, a disability with symptoms capable of lay observation.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  The Veteran's service treatment records are silent for any complaints or treatment for headaches.  

In an April 2013 VA opinion, the examiner found the Veteran's headaches were less likely than not secondary to his cervical spine disability.  As a rationale, the examiner stated that the Veteran's history is consistent with migraine headaches, however he states that his neck stiffness and pain is associated with severe headaches.  He also stated that his neck symptoms follow severe exacerbations of his headaches.  The VA opinion did not directly address whether the Veteran's headaches were aggravated by his cervical spine disability or fully explain why the headaches were not related to his neck symptoms.  Therefore, the Board finds that the opinion has limited probative value.

In the October 2015 opinion, a private physician, Dr. H.S., opined that "It is highly likely the headaches are caused/aggravated by the tinnitus and neck problems especially since all of those problems started about the same time in service.  Dr. H.S. noted that when he reviewed the Veteran's c-file and other medical records, it was noted that some of his doctors felt his headaches were due to the neck problems.  Dr. H.S. stated that "The type of service-connected neck problems are known to cause headaches."  The Board finds the private opinion to be probative, as Dr. H.S. provided a rationale for the opinion.

A May 2014 VA treatment record indicated that the Veteran reported that his headache started 6 months ago from behind the left ear and went to the vetex area on the same side.  He reported having it daily for six months.  The VA examiner found "headache likely referred pain from ear/mastoid air cells or neck."  The VA treatment record supports the October 2015 opinion finding that the Veteran's headaches are related to his service-connected cervical spine disability.

Giving the Veteran the benefit of the doubt, the Board finds that the evidence of record supports a finding that the Veteran's headaches are caused by his service-connected cervical degenerative disc disease.  The Board finds the October 2015 private opinion and May 2014 VA treatment records to be more probative than the April 2013 VA opinion, which did not provide a full rationale for the opinion.  As the private opinion and VA treatment records indicate the Veteran's headaches are related to his service-connected cervical spine disability, service connection for headaches is warranted, secondary to his service-connected cervical degenerative disc disease.


Bilateral Leg Disability

The Veteran asserts that he is entitled to service connection for a bilateral leg disability.  For the reasons that follow, the Board finds that service connection is not warranted.

The Veteran's service treatment records do not show that the Veteran had any complaints or treatments for leg problems in service.  The Veteran's July 1957 enlistment examination report and report of medical history did not note any lower extremity problems.  In a November 1966 service examination report, the Veteran's lower extremities were noted as normal.  In a November 1966 report of medical history, the Veteran denied having arthritis or rheumatism.  A June 1967 separation examination report indicated the Veteran's lower extremities were normal.

A May 1970 Reserves re-enlistment examination report indicated the Veteran's lower extremities were normal.  In a May 1970 report of medical history, the Veteran denied having had arthritis or rheumatism, bone, joint, or other deformity, or neuritis.

A January 1973 Reserves service treatment record indicated the Veteran's lower extremities were normal.  No bilateral leg problems were noted.  In a January 1973 report of medical history, the Veteran did not note having had any lower extremity problems.  He denied having had cramps in the legs, arthritis or a bone, joint or other deformity.

The Veteran has not specifically asserted that he has had symptoms of leg problems since service.

A December 2010 VA general examination report indicated that on examination of the lower extremities, there was no heat, redness or soft tissue swelling noted about the hips, knees, ankles or feet.  There was a normal range of motion of the hips, knees, ankles and toe joints in regard to the Veteran's age.  There was slight decreased sensation to light touch hand pressure in the lower extremities.

A July 2015 VA examination report noted that the Veteran had symptoms of radiculopathy on examination.  The examiner stated that the Veteran suffered from polyneuropathy secondary to diabetes mellitus according to his VA problem list, which explains that absent ankle reflexes.  The examiner noted that the Veteran reported having shooting pain down the lateral aspect of his leg to the ankle.  The Veteran reported no current numbness or tingling in the legs.  The VA examiner stated that he did not find any localizing neurologic findings to support active intervertebral disc syndrome (IVDS) at the time of the examination.   

As the Veteran has polyneuropathy in the legs, he has a current disability.  However, the Board finds that the  preponderance of the evidence is against a finding that the Veteran has a leg disability that is related to service.  There is no evidence the Veteran had any symptoms relating to the legs in service or in the years immediately following service.  The Veteran has not asserted that he has had symptoms of a leg disability since service.  The July 2015 VA examiner found that the Veteran had polyneuropathy secondary to diabetes mellitus, which is not a service-connected disability, as discussed above.  Additionally, the VA examiner indicated the Veteran's leg symptoms were not related to his service-connected thoracolumbar spine disability.  

Although a lay person may be competent to report the etiology of or diagnose a disability, a leg disability such as polyneuropathy is not the type of disorder which is susceptible to lay opinion concerning etiology.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Even if the Veteran were competent to provide an opinion as to the etiology of a disorder which is typically confirmed by medical tests, the Board finds that the probative value of any such opinion is outweighed by that of the July 2015 VA examiner, who has education, training and experience in evaluating the etiology of the disability.

Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for a bilateral leg disability.  Consequently, the benefit-of-the-doubt rule is not applicable, and the claim must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990)

Bilateral Knee Disability

The Veteran asserted that he is entitled to service connection for a bilateral knee disability.  For the reasons that follow, the Board finds that service connection is not warranted.

A November 2010 general examination report noted the Veteran had a history of degenerative joint disease of the knees.  Therefore, the Board finds that the Veteran has a current bilateral knee disability.

Turning to whether there is a nexus between the Veteran's bilateral knee disability and service, the Veteran has not specifically asserted why he believes his knee disability is related to service.  The Veteran's service treatment records do not note any complaints or treatment for knee problems.  In a November 1966 service examination report, the Veteran's lower extremities were noted as normal.  In a November 1966 report of medical history, the Veteran denied having arthritis or rheumatism or a "trick" or locked knee.  A June 1967 separation examination report indicated the Veteran's lower extremities were normal.

The Veteran's medical treatment records in the years following service also do not indicate he had any complaints or treatment for knee problems.  A May 1970 re-enlistment examination report indicated the Veteran's lower extremities were normal.  In a May 1970 report of medical history, the Veteran denied having had a "trick" or locked knee.

A January 1973 Reserves examination record indicated the Veteran's lower extremities were normal.  No knee problems were noted.  In the January 1973 report of medical history, the Veteran denied having had a "trick" or locked knee.

A July 2004 VA X-ray report indicated the Veteran had left knee pain with giving way every day.  The July 2004 report found the Veteran had chronic changes of both knees.  The Veteran had mild osteopenia.  Age-appropriate osteoarthritis was seen with no evidence for fractures or subluxations.  There was no evidence of chondrocalcinosis. 

A November 2010 general examination report noted the Veteran had a history of degenerative joint disease of the knees.

Although the Veteran has a current knee disability, there is no evidence in the claims file supporting a nexus between the Veteran's current bilateral knee disability and service.  The Veteran has not asserted that he has had continuous symptoms of a knee disability since service.  The Veteran's Reserves records do not indicate he had any problems or complaints relating to his knees in the years immediately following his active duty service.  The first evidence of a knee problem of record was a July 2004 VA X-ray report, many years after his discharge from service.

As a lay person, the Veteran is competent to report symptoms, and in certain cases, the etiology of a disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  However, degenerative joint disease of the knees is not a disability capable of lay opinion as to etiology.  Therefore, the Veteran's assertion that his degenerative joint disease of the knees is related to his active duty service is not competent evidence in support of the claim.

Accordingly, the Board finds that the preponderance of the evidence is against the  claim for entitlement to service connection for a bilateral knee disability.  Consequently, the benefit-of-the-doubt rule is not applicable, and the claim must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Left and Right Arm Disability

The Veteran asserts that he is entitled to service connection for right and left arm disabilities due to a jeep accident in service.  For the reasons that follow, the Board finds that service connection is not warranted.

The Veteran has been diagnosed with bilateral degenerative shoulder arthritis and carpal tunnel syndrome.  See November 2014 VA examination report.  Therefore, the Veteran has current left and right arm disabilities.

As to whether there is a nexus between the Veteran's left and right arm disabilities and service, there is no record of a right arm disability in the service treatment records. 

The Veteran's July 1957 entrance examination report indicated the Veteran had normal upper extremities.  No arm condition was noted.  In a November 1966 service examination report, the Veteran's upper extremities were noted as normal.  In a November 1966 report of medical history, the Veteran denied having a painful or "trick" shoulder or elbow.  

An April 1967 service treatment record indicated the Veteran cut his arm on safety wire.  In a June 1967 separation examination report, the upper extremities were normal and there was no reference to an arm disability.

A May 1970 re-enlistment examination report indicated the Veteran's upper extremities were normal.  In a May 1970 report of medical history, the Veteran denied having had a painful or "trick" shoulder or elbow.

The January 1973 Reserves examination report indicated the Veteran's upper extremities were normal.  No arm problems were noted.  In a January 1973 report of medical history, the Veteran denied having a painful or "trick" shoulder or elbow.  

At the November 2014 VA examination, the Veteran reported that when he was on guard duty at Camp Pendleton in 1958/59, he drove a jeep down a ravine and it flipped over, landing on its left side.  The Veteran said he was knocked out, and he hurt his head and his shoulder.  He reported that he twisted his back.  He said he told the treating doctor that his shoulder was hurting, but said he was not listened to and his shoulder was not examined.  He stated that "every once and a while" while on active duty he had some aches and pains in the left shoulder, but he never went back because he did not think they would take him seriously and evaluate the shoulder.  

The Veteran was afforded a VA examination in November 2014 to address the etiology of his left arm disability.  The VA examiner found that the Veteran's current left shoulder arthritis was less likely than not due to a jeep accident that occurred in approximately 1958.  The VA examiner noted that there was no pre-existing left shoulder condition upon entry into active duty.  The examiner further noted there was indirect evidence that the Veteran was involved in a jeep accident while on active duty.  While on active duty, the Veteran had a separation examination and several additional medical examinations, none of which documented a left shoulder injury.  The VA examiner stated there was simply no medical evidence to establish that the Veteran incurred a left shoulder injury.  Though the Veteran stated he had periodic left shoulder pain for the 56 years after the accident, the first medical evidence to diagnose a left shoulder condition was from 2013, and this showed bilateral shoulder degenerative arthritis of about equal degree.  The Veteran said that his right shoulder had been bothering him for about three years.  The VA examiner noted that the bilateral shoulder arthritis of comparable degree argued against a 56 year unilateral left shoulder residual from a jeep accident.  Given the lack of documentation of the original injury, the negative medical exams held after the accident, the passage of more than 40 years with interim development of bilateral shoulder arthritis, the VA examiner opined that it was less likely than not due to the in-service jeep accident.

The VA examiner also noted that the August 1967 service treatment record regarding the Veteran's left arm cut indicated that the medical officer thought the injury was not likely to result in permanent injury or disability.  The VA examiner noted that there were no return visits or other treatment episodes relating to the condition in the service treatment records.  He also noted that this was apparently not the injury for which the Veteran filed a claim.  The Board finds the November 2014 VA examiner's opinion to be highly probative as he provided a full rationale for the opinion.

A July 2015 VA examination of the cervical spine found the Veteran did not have radiculopathy related to his cervical spine disability.

The Veteran has stated that he believes his left and right arm disabilities are related to service.  Although a lay person may be competent to report the etiology of or diagnose a disability, arthritis is not the type of disorder which is susceptible to lay opinion concerning etiology or diagnosis.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Even if the Veteran were competent to provide an opinion as to the etiology of or diagnose a disorder which is typically confirmed by X-ray, the Board finds that the probative value of any such opinion is outweighed by that of the November 2014 VA examiner, who has education, training and experience in evaluating the etiology of arthritis. 

The Veteran asserted that he has had symptoms of a left arm disability since service.  However, the Veteran's separation examination report and Reserves records do not indicate the Veteran reported any complaints relating to his left arm.  As the Veteran's statement is contradicted by the more contemporaneous evidence of record, it is less than credible.

The Board finds that the preponderance of the evidence is against the Veteran's claims for service connection for right and left arm disabilities. The evidence does not show that the Veteran had right or left arm disabilities in service.  Although the Veteran had a cut on his left arm, the Veteran has filed a claim for service connection for his left shoulder arthritis or carpal tunnel syndrome, which is not related to a cut.  The evidence does not show the Veteran had symptoms of a left arm disability within one year of service.  The Veteran specifically told the November 2014 VA examiner that the first had symptoms of a right shoulder disability three years prior.  The November 2014 VA examiner found there was not a nexus between the Veteran's left arm disability and service.  As noted above, the Board finds the opinion to be highly probative.  There is no competent evidence of a nexus between the Veteran's right arm disability and service.  Accordingly, the Board finds that the preponderance of the evidence is against the claim.  Consequently, the benefit-of-the-doubt rule is not applicable, and the claims for entitlement to service connection for right and left arm disabilities must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Acquired Psychiatric Disorder

The Veteran asserts that he has a mental disorder that is related to service.  For the reasons that follow, the Board finds that service connection for depressive disorder is warranted.

The Veteran's service treatment records do not contain any complaints, treatment or diagnoses related to a mental disorder.  VA treatment records did not show the Veteran had been diagnosed with a current mental disorder.

In an October 2015 opinion, a private psychologist diagnosed the Veteran with depressive disorder due to another medical condition with depressed features.  The psychologist stated that:

It is the belief of this examiner, based on interview and the C-file that [the Veteran's] degenerative disc disease thoracolumbar spine with post traumatic changes T10, cervical degenerative disc disease and tinnitus are more likely than not causing his depressive disorder due to another medical condition and preventing him from maintaining substantially gainful employment.

The psychologist noted that the Veteran's symptom complex related back to his original claim date in September 2010.  The Veteran remarked he was no longer able to do some of the activities that he used to and it made him depressed.  He stated that because of his back and neck he was not able to do the yard work and being in pain made him irritable and frustrated and he isolated from others.  He reported that his near-continuous depression and anxiety symptomatology were not present prior to his military service.  The psychologist noted that there is a body of literature detailing the connection between medical issues, like the issue that the Veteran struggles with, and psychiatric disorder, similar to his depressive disorder complaints.  The psychologist cited specific medical literature supporting the opinion. 

The Board finds the October 2015 private opinion to be highly probative.  The psychologist provided a full rationale for the opinion based on a review of the evidence of record.

The Board finds that the evidence of record supports a finding of entitlement to service connection for depressive disorder, secondary to the Veteran's service-connected disabilities.  As noted above, service connection may be established on a secondary basis for a disability which is proximately due to, or aggravated by, service-connected disease or injury.  38 C.F.R. § 3.310(a).  The highly probative October 2015 private opinion supports a finding that the Veteran has a diagnosis of depressive disorder that is caused by his service-connected disabilities.  There is no other evidence of record contradicting the opinion.  Giving the Veteran the benefit of the doubt, the Board finds that service connection for depressive disorder is warranted.

Bladder Cancer

The Veteran asserts that he is entitled to service connection for bladder cancer, due to exposure to contaminated water at Camp Lejeune.  For the reasons that follow, the Board finds that entitlement to service connection for bladder cancer is not warranted.

A February 2011 VA treatment record indicates the Veteran was diagnosed with bladder cancer.  Therefore, the Veteran has a disability.  However, the Board finds that there is not a nexus between the bladder cancer and service.

The Veteran's service treatment records do not contain any references to complaints or treatment for bladder problems.

A January 1971 report of medical history indicates the Veteran had an orchiectomy in March 1971 for cancer of the right testis.  

The Veteran was stationed at Camp Lejeune from November to December 1958.  Treatise evidence contained in the record confirms the drinking water at Camp Lejeune was contaminated with several industrial solvents from the 1950s to the 1980s.  The Veteran was therefore present during the period of contamination.  The second element of service connection-an in-service injury in the form of chemical exposure-is therefore demonstrated. 

A July 2014 VA treatment record notes, "Current ATDSR literature and the USMC have established a connection between bladder cancer and the contaminated wells at Camp Lejeune.  If this patient was exposed to the chemicals in the water it is possible they may have caused his bladder cancer."  Although the statement indicates the Veteran's bladder cancer may be related to his service at Camp Lejeune, it is equivocal, and thus has limited probative value.

An August 2014 VA examiner found that the Veteran's bladder cancer was less likely than not incurred in or caused by the claimed in-service injury, event, or illness.  The examiner noted that:

Although bladder cancer is listed as one of the 14 diseases mentioned in the NRC monograph on CLCW, it is noted as an association.  It is not a causal relationship, which is required for a nexus to be created.  Many industries carry high risk for bladder cancer, but not military service.  Chemicals called aromatic amines, such as benzidine and beta-naphthylamine, which are sometimes used in the dye industry, can cause bladder cancer. TCE and PCE are not noted for being causal for bladder cancer.  This Veteran served at Camp Lejeune for less than two months (60 days).  This period of exposure does not rise to the level required to create a causal nexus for the claimed condition with CLCW exposure.

The Board finds the August 2014 VA examination report to be probative.  The VA examiner provided a full rationale for the opinion.  

The Veteran has stated that he believes his bladder cancer is related to exposure to chemicals at Camp Lejeune.  Although a lay person may be competent to report the etiology of a disability, bladder cancer is not the type of disorder which is susceptible to lay opinion concerning etiology or diagnosis.  Even if the Veteran were competent to provide an opinion as to the etiology of the disorder, the Board finds that the probative value of any such opinion is outweighed by that of the August 2014VA examiner, who has education, training and experience in evaluating the etiology of bladder cancer.

The Board finds that the preponderance of the evidence is against the Veteran's claim.  The Veteran was diagnosed with bladder cancer, more than forty years after his discharge from service.  Although the Veteran served at Camp Lejeune, the August 2014 VA examiner found the period of exposure did not rise to the level required to create a causal nexus for the claimed condition.  The Board finds the August 2014 VA opinion to be more probative than the equivocal opinion in the July 2014 VA treatment record.  The Veteran was diagnosed with cancer of the right testis several years after his discharge from service, and there is no indication the Veteran's bladder cancer is related to his earlier testis cancer.  

Accordingly, the Board finds that the preponderance of the evidence is against the claim for entitlement to service connection for bladder cancer.  Consequently, the benefit-of-the-doubt rule is not applicable, and the claim must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

IV.  Increased Rating Claims

Cervical Spine Disability

The Veteran asserts that he is entitled to an initial rating in excess of 20 percent.  For the reasons that follow, the Board finds that a higher rating is not warranted.


Legal Criteria

Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2015).  When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  Otherwise, the lower rating will be assigned.  Id.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the appellant.  Id. § 4.3.

An appeal from the initial assignment of a disability rating, such as the appeal in this case, requires consideration of the entire time period involved, and contemplates staged ratings where warranted.  See Fenderson v. West, 12 Vet. App. 119 (1999).

The Veteran's cervical spine disability is currently rated as 20 percent disabling under Diagnostic Code 5243.  Under the general rating formula for disease and injuries of the spine, the general rating formula provides a 20 percent disability rating for forward flexion of the cervical spine greater than 15 degrees, but not greater than 30 degrees; or, 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 disability rating is assigned for forward flexion of the cervical spine to 15 degrees or less; or, favorable ankylosis of the entire cervical spine.  A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, for unfavorable ankylosis of the entire cervical spine, or for favorable ankyloses of the entire thoracolumbar spine.  A 50 percent rating is warranted for unfavorable ankyloses of the entire thoracolumbar spine, while a total disability (100 percent) rating is assignable for unfavorable ankyloses of the entire thoracolumbar spine.  A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine.  38 C.F.R. § 4.71a. 

Degenerative disc disease is evaluated under the general formula for diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome (IVDS) based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25.  38 C.F.R. § 4.71a , Diagnostic Code 5243.  Under Diagnostic Code 5243, a 20 percent evaluation is assigned for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.  A 40 percent evaluation is assigned for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  A maximum 60 percent evaluation is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  Note 1 provides that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  38 C.F.R. § 4.71a , Diagnostic Code 5243. 

In considering the appropriate rating to assign in a particular case, when the effects of a service-connected disability have not been clinically disassociated from those of a non-service-connected disorder, all relevant signs and symptoms must be attributed to the service-connected disability.  See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (citing 61 Fed. Reg. 52,698  (1996)).

In addition, when evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to such factors as flare-ups of pain, fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse.  38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206 -07 (1995).  A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. See 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997).  Moreover, while pain may result in functional loss, the two factors are not indistinguishable.  In other words, the pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss for VA rating purposes.  See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40 ).

Analysis

The Veteran was granted entitlement to service connection for cervical degenerative disc disease with an evaluation of 20 percent effective October 24, 2011 in a May 2013 rating decision.  Therefore, the period on appeal is from October 24, 2011.

The evidence does not show the Veteran had forward flexion of the cervical spine to 15 degrees or less; or, favorable ankylosis of the entire cervical spine, during the period on appeal.  At an April 2013 VA examination, the Veteran's cervical spine had forward flexion ending at 25 degrees with no objective evidence of painful motion.  Following 3 repetitions, the Veteran had forward flexion ending at 20 degrees.  After three repetitions of range of motion in all vectors, there was no decrease in range of motion due to pain or stiffness.  The examiner noted the Veteran had visible pain during the range of motion exercises.  The examination report noted the Veteran had less movement than normal and pain on movement of the cervical spine after repetitive use.  The examiner stated the Veteran was restricted from repetitive motion of his neck.  The Veteran reported having flare-ups of the cervical spine 1 to 2 times per week that last approximately 5 to 6 hours, and resolve with rest and Vicodin.  The Veteran's muscle strength was normal.  He did not have muscle atrophy.  Reflex examination was normal.  The Veteran did not have radiculopathy.

At a July 2015 VA examination, the Veteran's cervical spine had forward flexion of 30 degrees.  The examiner stated that pain was noted on examination and caused functional loss.  There was objective evidence of tenderness over the lower cervical spinous processes and over the left paraspinous muscles near the lower cervical vertebrae.  Following three repetitions, the cervical spine had forward flexion of 20 degrees.  The examiner noted that it would be mere speculation to state whether the Veteran's functional ability is limited over a period of time because the examination was not being conducted under repetitive use over time.  The Veteran did not have ankyloses of the spine.  The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy.  The Veteran's VA treatment records indicate the Veteran consistently reported having neck pain.  

The evidence does not establish, and the Veteran does not allege, that his cervical spine disability results in incapacitating episodes requiring bed rest prescribed by a physician.  The record contains VA treatment records documenting the Veteran's complaints of cervical pain and treatment with medication, but there is no lay or medical evidence of incapacitating episodes.  Therefore, the Board cannot conclude that the Veteran's disability most nearly approximates the criteria associated with an increased 40 percent evaluation under Diagnostic Code 5243. 

VA is required to consider functional impairment when evaluating disabilities based on limitation of motion.  But, even following repetitive use, the Veteran's cervical spine has not been shown to have forward flexion of the 15 degrees or less.  See 38 C.F.R. § 4.40, 4.45.  At the April 2013 and July 2015 VA examinations, the Veteran had forward flexion of the cervical spine of 20 degrees.  There is also no indication the Veteran had ankylosis of the cervical spine.

The Board has considered the Veteran's statements regarding pain due to his cervical spine disability.  There is no indication a separate rating is warranted under another Diagnostic Code.  The VA examination reports indicated the Veteran did not have radicular pain or any signs or symptoms of radiculopathy.  Although the Board finds the Veteran's statements regarding his pain to be credible, the evidence is against a finding that he is entitled to a rating in excess of 20 percent under the diagnostic criteria.  

Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim.  Consequently, the benefit-of-the-doubt rule is not applicable, and the claim must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Thoracolumbar Spine

The Veteran asserts that he is entitled to a rating in excess of 20 percent for degenerative disc disease of the thoracolumbar spine, with post traumatic changes at T10.  For the reasons that follow, the Board finds that a higher rating is not warranted.

Legal Criteria

The Board notes that the Veteran previously completed an appeal on the issue of entitlement to a higher initial rating for degenerative disc disease of the thoracolumbar spine, with post traumatic changes T10, but he withdrew his appeal in August 2007.  He filed this claim for a higher rating on October 15, 2009.

The Veteran's thoracolumbar spine disability is rated as 40 percent disabling under Diagnostic Code 5235 for vertebral fracture or dislocation.

Under the General Rating Formula for Disease and Injuries of the Spine, a 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine.  Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating.  Unfavorable ankylosis of the entire spine warrants a 100 percent rating. 

In addition, intervertebral disc syndrome (IVDS) may also be evaluated based on incapacitating episodes, depending on which method results in the higher evaluation when all disabilities are combined under § 4.25.

The Veteran would be entitled to a 60 percent evaluation if the evidence of record reflects that he has IVDS with incapacitating episodes (i.e. bed rest prescribed by a physician and treatment by a physician) having a total duration of at least six weeks during the past 12 months.

Analysis

A November 2008 private chiropractic records indicated that the Veteran reported suffering from on-going lower back pain with acute episodes of moderate to severe radiating pain into this left leg.  Thoracolumbar range of motion indicated there was moderate pain in the lower thoracic paravertebral muscles and in the left quadratus and erector spinae muscles.  The Veteran was diagnosed with acute exacerbation of a chronic mild to moderate thoracolumbar myofascial strain/sprain, chronic moderate lumbosacral spine-sacral strain/sprain, diffuse idiopathic skeletal hyperostosis (DISH).

A November 2009 private treatment record indicated the Veteran reported having acute lower back pain with radiculopathy to the legs for 1 day.  He was prescribed pain medication.

An October 2009 VA treatment record noted that X-rays showed degenerative changes of the thoracic spine without significant progression compared with April 2009.

A January 2010 VA treatment record indicates that the Veteran reported having constant back pain.  He reported that two months prior to the examination, he had an incapacitating episode that was so severe he was told to be on bed rest for five days and prescribed Norco.  He reported having a significant flare up three to four times a month with 10/10 pain lasting one whole day.  For the pain, he has been prescribed Vicodin.  His flare ups of pain are associated with stiffness, fatigue, and occasional spasm.  The examiner noted that the Veteran reported having weakness, parethesias and numbness in his hands and weakness in his legs, but recently had an EMG which showed that he had carpal tunnel syndrome and a polyneuropathy due to diabetes mellitus and vitamin B-12 deficiency.  He did not use any assistive devices and could walk about a mile on level ground.  He had never bene hospitalized with surgery for the back.  He reported falling on uneven ground about once a week.  He worked part time as an electrical inspector.

On examination, the Veteran had only mild difficulty rising from seated position.  The Veteran's gait and posture were normal.  The back had forward flexion of 0 to 50 degrees, but only 0 to 40 degrees after three repetitions secondary to pain.  Extension was 0 to 20 degrees, and 0 to 15 degrees after three repetitions.  Sensation in the lower extremities was grossly intact.  Muscle strength was 5+/5+ in all major muscle groups of lower extremities.  

In a January 2010 statement, the Veteran stated that he was unable to bend over and pick up things from the ground.  He stated that he had to get down on his knees and had trouble getting back up on his feet.  He reported difficulty putting his socks on and tying his shoes, and getting up from a chair after sitting a while.  He reported having constant pain in his back of 7-8, and of 9-10 after any kind of work.

An August 2010 VA treatment record noted that the Veteran had radiculopathy, specifically left leg burning sensation to foot.

In a November 2010 buddy statement, E.B. stated that he had known the Veteran for 30 years.  He stated that the Veteran now had difficulty doing some of the simplest of tasks like bending over to pull weeds or pick up trash.  E.B. stated that the Veteran had fallen several times.  In another November 2010 buddy statement, J.C. stated she had known the Veteran for 5 years, and the Veteran had trouble bending because of his back.  Lay witnesses are competent to report symptoms capable of lay observation, and the Board finds the buddy statements to be credible.  Therefore, the statements have probative value.

A November 2010 general examination report indicated that the Veteran reported having daily flare up of 10/10 in the morning that lasted about an hour as he got up and moved about.  He would also get flare-ups of pain depending on his activity level with chores.  He denied bowel or bladder function impairment due to his back.  There was mild tenderness to palpation of the paravertebral musculature at T10-T12.  The spine had forward flexion from 0 to 45 degrees.  The examiner noted there was 0 degrees of additional loss of range of motion due to pain on repetitive use based on three repetitions.  There was mild fatigability, weakness and lack of endurance, but no incoordination of the Veteran's thoracolumbar spine.  Pain on repetitive use had a primary functional impact on the spine.

A July 2015 VA examination indicated the Veteran had flare up of his back lasting for 30 minutes every couple of weeks with pain of 10/10.  On examination, the thoracolumbar spine had forward flexion of 0 to 40 degrees.  The examiner stated the Veteran had marked limitation of motion in all six dimensions associated with pain which limited his ability to move in any dimension, affecting bending particularly.  The Veteran was not examined immediately after repetitive use over time because the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time.  There was no ankylosis of the spine.  As discussed above, the VA examiner noted the Veteran had polyneuropathy secondary to diabetes mellitus.  The examiner also found that the Veteran's periodic pain radiating down the left leg was not associated with numbness or tingling, and the examiner did not find any localizing neurologic findings to support active intervertebral disc syndrome at that time.

The July 2015 VA examiner found that the Veteran would no longer be able to do the manual and physical requirements of his prior jobs inspecting job sites due to his inability to walk on uneven ground.  He would not be able to return to work in his usual and customary occupation as an electrical engineering technician or highway electrician.  The Veteran could perform sedentary work for which he is otherwise qualified and/or trained as long as he could sit, stand or walk about to comfort.

The Board finds that the Veteran is not entitled to a rating in excess of 40 percent for his thoracolumbar spine disability.  There are no objective findings of ankylosis at any time during the claims period.  The Veteran has not reported that his thoracolumbar spine is fixed in any position.  Although the Veteran has decreased limitation of motion, he has not made any complaints consistent with a finding of ankylosis.

The Board notes that the provisions of 38 C.F.R. § 4.40  and § 4.45 are not for consideration where the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis.  Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); DeLuca v. Brown, 8 Vet. App. 202 (1995).

The Board has considered whether the Veteran is entitled to a separate rating for radiculopathy or other neurological symptoms.  As noted above, the evidence does not show the Veteran has radiculopathy related to his service-connected thoracolumbar spine disability.  Additionally, there are no other neurologic abnormalities or findings related to the thoracolumbar spine disability, such as bowel or bladder problems.  See July 2015 VA examination report.  Therefore, the Board finds that a separate rating for neurologic abnormalities is not warranted.

In sum, the Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for the Veteran's thoracolumbar spine disability.  Therefore, the claim must be denied.

Bilateral Hearing Loss

The Board asserts that he is entitled to a compensable rating for bilateral hearing loss.  For the reasons that follow, the Board finds that a compensable rating is not warranted.

Legal Criteria

Disability ratings for hearing loss are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by pure tone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. 

The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness.  VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a pure tone audiometric test.  The horizontal lines in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The vertical columns in Table VI represent nine categories of decibel loss based on the pure tone audiometric test.  The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column appropriate to the pure tone decibel loss.

The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85 ) by intersecting the horizontal row appropriate for the numeric designation for the ear having the better hearing acuity and the appropriate vertical column to the numeric designation level for the ear having the poorer hearing acuity.  See 38 C.F.R. § 4.85(e) (2015). 

The provisions of 38 C.F.R. § 4.86(a)  provide that when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral.  Each ear will be evaluated separately. The provisions of 38 C.F.R. § 4.86(b) provide that when the pure tone threshold is 30 decibels or less at 1,000 hertz, and 70 decibels or more at 2,000 hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever result provides the higher numeral.  That numeral will then be elevated to the next higher Roman numeral.  Each ear will be evaluated separately.

Analysis

The Veteran's service-connected bilateral hearing loss disability is rated as noncompensable.  In a statement received on February 6, 2008, the Veteran requested that his service-connected hearing loss be re-evaluated.  He stated that he had recently had a hearing evaluation and the examiner told him his hearing had declined.


The Veteran was evaluated in a VA audiological examination in May 2008.  In the evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
40
50
60
60
LEFT
55
65
75
85
105

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 92 percent in the left ear.  

The May 2008 VA examiner stated that the Veteran's flat tympanogram was consistent with possible middle ear fluid of the left ear and that current thresholds should not be used for rating purposes.  The VA examiner further noted that the Veteran's results were suggestive of a medical problem which if resolved would probably change thresholds.  The Veteran was referred to ENT for evaluation and the examiner noted he should be re-evaluated after medical treatment of the left ear.  

As the May 2008 VA examiner indicated that the results should not be used for rating purposes, the Board cannot consider the results in evaluating the Veteran's hearing loss. 

The Veteran was evaluated in a VA audiological examination in December 2010.  In the evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
35
35
50
60
60
LEFT
40
40
70
70
75

Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 100 percent in the left ear.  

Applying the results to Table VI, the Veteran's right ear had an average of 51.25, corresponding to Level I.  The Veteran's left ear had an average of 63.75, Corresponding to Level I.  Table VII provided that Level I in both ears, warrants a noncompensable evaluation.  38 C.F.R. § 4.85, Diagnostic Code 6100, Table VII (2015).

The Veteran was evaluated in another VA audiological examination in December 2014.  In the evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
50
55
60
60
LEFT
45
50
70
65
70

Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 80 percent in the left ear.  

The report noted that the Veteran's hearing loss impacted ordinary conditions of daily life.  The Veteran stated that his wife complained that he always asked her to repeat things.  

Applying the results of the December 2014 VA examination to Table VI, the Veteran's right ear warranted a Level I, and the left ear corresponded to a Level IV.  Applying the results to Table VII, a noncompensable rating is warranted.  38 C.F.R. § 4.85 , Diagnostic Code 6100, Table VII (2015).

The Board has also considered the provisions of 38 C.F.R. § 4.86 (2015) governing exceptional patterns of hearing impairment.  However, since the audiological reports from December 2010 and December 2014 fail to demonstrate that each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) in either ear is 55 decibels or more, or that the pure tone threshold is 30 decibels or less at 1000 Hertz  and 70 decibels or more at 2000 Hertz  in either ear, an evaluation for exceptional patterns of hearing impairment is not warranted. See 38 C.F.R. § 4.86 (a), (b) (2015).  As noted above, the May 2008 VA examiner specified that the results should not be used for rating purposes.
In short, the Veteran's bilateral hearing loss disability has remained at a noncompensable level pursuant to VA regulations.  A compensable rating is therefore not warranted.

It is important to note that the results of the VA audiometric testing do not signify the absence of a significant disability associated with the Veteran's bilateral hearing loss disability.  However, the degree to which this disability affects the average impairment of earnings, according to the Rating Schedule, results in a noncompensable rating.  See Id.; 38 U.S.C.A. § 1155 (West 2014).

The Court has held that a VA examination addressing hearing loss must also address the functional effects of the Veteran's hearing loss.  See Martinak v. Nicholson, 21 Vet. App. 447 (2007).  In this case, the December 2014 VA examiner noted that the Veteran's hearing loss impacted his ordinary conditions of daily life.  The Veteran stated that his wife complained that he always asked her to repeat things.  Therefore, the examination reports have complied with the requirement and are adequate for rating purposes.

The Board acknowledges the Veteran's assertion that his hearing is worse than currently rated, that he should be entitled to a compensable rating, and that it affects his daily life.  The Veteran is competent to report on factual matters and observable symptoms of which he had firsthand knowledge, and the Board finds that the Veteran is credible.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the fact that the Veteran's hearing acuity is less than optimal does not, by itself, establish entitlement to a higher disability rating.  Additionally, with respect to the Rating Schedule, where the criteria set forth therein requires medical expertise that the Veteran has not been shown to have, the objective medical findings and opinions provided in the VA audiological examination reports have been accorded greater probative weight.

While sympathetic to the Veteran's complaints, the Board notes that entitlement to a compensable evaluation has not been demonstrated in the present case. It is clear from the Rating Schedule that a higher rating can be awarded only when loss of hearing has reached a specified measurable level.  As such, a compensable rating for bilateral hearing loss is not warranted.

Extraschedular Considerations

An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a 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.  Thun, 22 Vet. App. at 115-16.  When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular evaluation.  38 C.F.R. § 3.321(b)(1) (2015).  Otherwise, the schedular evaluation is adequate, and referral is not required.  Thun, 22 Vet. App. at 116.

Turning to the first step of the Thun extraschedular analysis, the Board finds that all the symptomatology and impairment caused by the Veteran's thoracolumbar spine, cervical spine and bilateral hearing loss disabilities are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. 

The Veteran's thoracolumbar and cervical spine disabilities have manifested in painful movement, and limitation of motion due to pain, and during flare-ups.  The schedular criteria for rating spine disabilities 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 that result in functional impairment (38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, Mitchell); and other clinical findings such as muscle spasm, guarding, abnormal gait, and abnormal spinal contours; and on the basis of incapacitating episodes.  See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991) (read together with schedular rating criteria, 38 C.F.R. §§ 4.40 and 4.45 recognize functional loss due to pain); Deluca v. Brown, 8 Vet. App. 202, 206-07 (1995) (functional limitations are applied to the schedular rating criteria to ascertain whether a higher schedular rating can be assigned based on limitation of motion due to pain and during flare-ups, and should be expressed in schedular rating terms of degree of range-of-motion loss); Burton v. Shinseki, 25 Vet. App. 1, 4 (2011) (the majority of 38 C.F.R. § 4.59, which is a schedular consideration rather than an extraschedular consideration, provides guidance for noting, evaluating, and rating joint pain); Sowers v. McDonald, No. 14-0217 (Vet. App. Feb. 12, 2016) (38 C.F.R. § 4.59 is limited by the diagnostic code applicable to the claimant's disability, and is read in conjunction with, and subject to, the relevant diagnostic code); Mitchell v. Shinseki, 25 Vet. App. 32, 33-36 (2011) (pain alone does not constitute functional impairment under VA regulations, and the rating schedule contains several provisions, such as 38 C.F.R. §§ 4.40, 4.45, 4.59, that address functional loss in the musculoskeletal system as a result of pain and other orthopedic factors when applied to schedular rating criteria); see also Mitchell at 45 (Footnote 2) and Vogan v. Shinseki, 24 Vet. App. 159, 161 (2010) (when a condition is not listed in the VA disability schedule, VA may undertake rating by analogy where the disability in question is analogous in terms of the functions affected, the anatomical localization, and the symptomatologies of the ailments).  

All the symptomatology and functional impairment described above result from the limitation of motion of the spine, to include as due to pain, stiffness, muscle spasm, and all the symptoms described by the Veteran are contemplated in the schedular ratings assigned under the General Rating Formula for Spine Disabilities either directly as limitation of motion or muscle spasm or tenderness or antalgic gait, or indirectly as orthopedic factors that limit motion and function.  See 38 C.F.R. §§ 4.40, 4.45, 4.59 4.71a; DeLuca, 8 Vet. App. at 206-07.  

The schedular rating criteria specifically include tenderness, spasm, and any and all limitations of motion of the spine in any direction, including in flexion, extension, lateral flexion, and rotation of the spine.  38 C.F.R. § 4.71a, Plate V.  Such symptoms and impairment are part of or similar to symptoms listed under the 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); Mauerhan v. Principi, 16 Vet. App. 436 (2002) (the schedular rating criteria also include analogous symptoms that are "like or similar to" listed schedular rating criteria).  Therefore, the Board finds that the record does not reflect that the thoracolumbar or cervical disability is so exceptional or unusual as to warrant referral for consideration of the assignment of a higher disability rating on an extraschedular basis.

The Board also finds that the diagnostic criteria contemplate and adequately describe the symptomatology of the Veteran's service-connected bilateral hearing loss.  See Thun, 22 Vet. App. at 115.  When comparing the Veteran's bilateral hearing loss symptoms with the schedular criteria, the Board finds that his symptoms are congruent with the disability picture represented by the noncompensable rating assigned herein.  See 38 C.F.R. § 4.86 , Diagnostic Code 6100 (2015).  The Board notes that 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.  Therefore, the Veteran's struggle to hear and understand conversations and other noises is a factor contemplated in the regulations and rating criteria as defined.  Accordingly, a comparison of the Veteran's symptoms and functional impairments resulting from bilateral hearing loss with the pertinent schedular criteria does not show that his service-connected bilateral hearing loss presents "such an exceptional or unusual disability picture... as to render impractical the application of the regular schedular standards."  38 C.F.R. § 3.321(b)  (2015).

V.  TDIU

The Veteran asserts that he unable to work due to his service-connected disabilities.  For the reasons that follow, the Board finds that entitlement to a TDIU, on an extraschedular basis, is warranted.

Total disability will be considered to exist when there is present any impairment of mind or body, which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340 (2015).  If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age.  38 C.F.R. § 3.341 (2015).  In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability.  38 C.F.R. § 4.15 (2015).

In order to establish an inability to maintain a substantially gainful occupation, as required for a TDIU award pursuant to 38 C.F.R. § 3.340(a), a veteran is not required to submit proof that he is 100 percent unemployable.  See Roberson v. Principi, 251 F.3d 1378, 1385 (2001).  Instead, the regulations contemplate more flexibility in the employability determination.  Id.  

If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he or she has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher.  38 C.F.R. § 4.16(a)  (2015).  It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the Veteran unemployable. 

Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability.  38 C.F.R. § 4.16(a).

The Veteran is currently rated as 40 percent disabling for degenerative disc disease of the thoracolumbar spine, 20 percent disabling for cervical degenerative disc disease, 10 percent disabling for tinnitus, and noncompensable for hearing loss.  The Veteran's combined schedular rating is 60 percent.  However, the Veteran's current disability ratings do not meet the threshold minimum percentage standards of 38 C.F.R. § 4.16(a).  

It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  38 C.F.R. § 4.16(b).  Therefore, if a veteran fails to meet the rating enunciated in 38 C.F.R. § 4.16(a), as here, an extraschedular rating is for consideration where a veteran is unemployable due to service-connected disability.  38 C.F.R. § 4.16(b).

In a May 2013 rating decision, the RO considered whether the issue of entitlement to a TDIU should be submitted to the Director of Compensation and Pension Service for extraschedular consideration.  See Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996).  The RO found the evidence failed to show the Veteran was unemployable due to service-connected disabilities and did not refer the issue for extraschedular consideration.  As the RO has already considered referral of the issue of TDIU on an extraschedular basis in the first instance, the Board will proceed to address entitlement to an extraschedular TDIU.

The Board finds the overall evidence shows the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation.  The December 2010 VA general medical examination indicated the Veteran was retired.  He stated he worked as a highway electrician repairing stop lights and street lights, he then worked as an electrical engineering technician.  His final promotion was a transportation engineer doing electrical design and electrical construction inspection.  He reported that he did some consultant work doing construction inspection until he had a fall on a highway that injured his wrist.

The December 2010 VA general medical examination indicates that the VA examiner found the Veteran would no longer be able to do the manual and physical requirements of his prior jobs inspecting job sites due to his inability to walk on uneven ground.  The Veteran complained of marked discomfort with repetitive bending, stooping, squatting, and twisting that he had to do when he was doing electrical engineering technical work, as well as repatriating computers and working as a highway electrician.  He would not be able to return to work in his usual and customary occupation.

In an August 2011 addendum opinion, the VA examiner stated that the Veteran could perform sedentary work for which he is otherwise qualified and/or trained as long as he could sit, stand or walk about to comfort.  

The April 2013 VA examiner found that the Veteran's cervical spine disability impacted his ability to work.  Specifically, the examiner noted the Veteran was restricted from repetitive motion of his neck.

In the October 2015 private psychological opinion, the physician found the Veteran would have to miss 3 or more days of work per month due to mental problems.  He found the Veteran would need to leave early from the workplace 3 or more days per month due to mental problems.  He also found the Veteran would not be able to stay focused to complete simple repetitive tasks more than 3 days per month for at least 7 hours of an 8 hour workday.  The private physician found the Veteran's depressive disorder caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood.  The examiner noted "the DSM states individuals with this symptomology typically have few friends and inability to maintain a job."  The private examiner found the Veteran could not sustain the stress from a competitive work environment or be expected to engage in gainful activity due to his depressive disorder secondary to medical condition.  The private examiner stated that the  Veteran's degenerative disc disease of the thoracolumbar spine, cervical degenerative disc disease and tinnitus were more likely than not causing his depressive disorder and preventing him from maintaining substantially gainful employment.

In a February 2004 decision, an Administrative Law Judge of the Social Security Administration (SSA) found that the Veteran was entitled to SSA disability benefits due to his back disability.  Although the decision is not binding on the Board, the Board has considered the SSA decision and SSA evidence.

The Board finds that the preponderance of the evidence supports a finding that the Veteran's service-connected disabilities render him unable to secure or follow substantially gainful occupation.  The evidence shows the Veteran had exclusive work experience as an electrical engineering technician, transportation engineer and electrical construction, requiring physical work.  The VA examination reports indicate the Veteran would be unable to return to his work as an electrical engineer due to his service-connected cervical and thoracolumbar spine disabilities.  The October 2015 private opinion indicates the Veteran's symptoms of depressive disorder would also affect the Veteran's ability to work.  The private examiner specifically found the Veteran's service-connected disabilities prevented him from maintaining substantially gainful employment.  Resolving reasonable doubt in the Veteran's favor, the Board finds that a TDIU, on an extraschedular basis, is warranted.  See 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015).


ORDER

Entitlement to an effective date prior to October 24, 2011, for the grant of service connection for cervical degenerative disc disease is denied.

New and material evidence not having been received, the claim to reopen a claim for entitlement to service connection for diabetes mellitus, type II, is denied.

Entitlement to service connection for residuals of a head injury is denied.

Entitlement to service connection for headaches, as secondary to his service-connected disabilities, is granted.

Entitlement to service connection for a bilateral leg disability is denied.

Entitlement to service connection for a bilateral knee disability is denied.

Entitlement to service connection for a left arm disability is denied.

Entitlement to service connection for a right arm disability is denied.

Entitlement to service connection for depressive disorder is granted.

Entitlement to service connection for bladder cancer, to include due to exposure to contaminated water at Camp Lejeune, is denied.

Entitlement to an initial rating in excess of 20 percent for cervical degenerative disc disease is denied.

Entitlement to a rating in excess of 40 percent for degenerative disc disease of the thoracolumbar spine, with post traumatic changes T10 is denied.

Entitlement to a compensable rating for bilateral hearing loss is denied.

Entitlement to a TDIU, on an extraschedular basis, is granted. 


REMAND

The Board finds that the Veteran's claim for entitlement to service connection for a left ear disability requiring ear tubes must be remanded for additional development.  The Veteran originally filed for service connection for an ear disability requiring ear tubes, secondary to his service-connected bilateral hearing loss.  The Veteran's VA treatment records indicate he has a history of left ear tubes for a left mastoid.  

An October 2008 private treatment record noted the Veteran appeared to have middle ear effusion on the left and some low frequency, conductive hearing loss.  It was recommended that he be referred to an otolaryngologist.  The record indicates the Veteran reported having intermittent ear infections on the left since the late 1960s.  In a November 2010 statement, the Veteran stated, "this condition first started around 1970 and has continued to the present."  

As noted above, the May 2008 VA examiner stated that the Veteran's flat tympanogram was consistent with possible middle ear fluid of the left ear.  The VA examiner further noted that the Veteran's results were suggestive of a medical problem which if resolved would probably change thresholds.  The Veteran was referred to ENT for evaluation.  A November 1966 service evaluation report indicated the Veteran had high frequency hearing loss.  The Veteran's June 1967 separation examination report audiological results indicated he had hearing loss.  

As the Veteran has a long history of ear infections, he had some degree of hearing loss in service, and he is service-connected for bilateral hearing loss, the Board finds that the evidence indicates the Veteran's ear infections may be related to service or a service-connected disability, and the low threshold for obtaining a VA examination has been met.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The Board finds that a VA examination should be obtained to address whether the Veteran has an ear disability, requiring ear tubes, that is related to service.  

Accordingly, the case is REMANDED for the following action:

(This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Schedule the Veteran for a VA examination to address:

(a)  Whether it is at least as likely as not (at least a 50 percent probability) that the Veteran has a left ear disability (or residuals of an ear disability) requiring ear tubes that is etiologically related to service.

(b)  Whether it is at least as likely as not (at least a 50 percent probability) that the Veteran has a left ear disability (or residuals of an ear disability) requiring ear tubes that is caused or aggravated by his service-connected bilateral hearing loss disability.

Forward the claims file to the examiner for review.  The VA clinician is requested to provide a thorough rationale for any opinion provided.  If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided.

2.  Thereafter, readjudicate the issue on appeal of entitlement to service connection for a left ear disability requiring ear tubes.  If the benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond.  The case should then be returned to the Board, as warranted.

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).



______________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs