Citation Nr: 1613977	
Decision Date: 04/06/16    Archive Date: 04/25/16

DOCKET NO.  14-44 094	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1.  Entitlement to service connection for a psychiatric disorder.

2.  Entitlement to service connection for hypertension.

3.  Entitlement to an initial disability for chronic lumbar strain in excess of 10 percent from February 9, 2011 to December 15, 2014, and in excess of 20 percent since December 16, 2014.

4.  Entitlement to an initial disability for radiculopathy of the left lower extremity associated with chronic lumbar strain in excess of 10 percent from February 9, 2011 to December 15, 2014, and in excess of zero percent from December 16, 2014.

5.  Entitlement to an effective date prior to February 9, 2011 for service for chronic lumbar strain.

6.  Entitlement to an effective date prior to February 9, 2011 for service for radiculopathy of the left lower extremity associated with chronic lumbar strain.

7.  Whether the severance of service connection for mild degenerative changes, right hip, was proper.

8.  Whether the severance of service connection for mild degenerative changes, left hip, was proper.

9.  Entitlement to an effective date prior to February 9, 2011 for service connection for mild degenerative changes, left hip.

10.  Entitlement to an effective date prior to February 9, 2011 for service connection for mild degenerative changes, right hip.

11.  Entitlement to an initial disability rating in excess of 10 percent for mild degenerative changes, left hip.

12.  Entitlement to an initial disability rating in excess of 10 percent for mild degenerative changes, right hip.

13.  Entitlement to service connection for a right knee disorder.

14.  Entitlement to service connection for a left knee disorder.

15.  Entitlement to service connection for a headache disorder.

Entitlement to service connection for a hearing loss disability.

16.  Entitlement to service connection for tinnitus.

17.  Entitlement to service connection for a left foot disorder.

18.  Entitlement to service connection for a right foot disorder.


ATTORNEY FOR THE BOARD

Andrew Hinton, Counsel


INTRODUCTION

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 Veteran had active service from March 1984 to February 1987 and from September 1987 to March 1989.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. 

Claims for service connection for psychiatric disabilities may encompass claims for service connection for all diagnosed psychiatric disabilities.  Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).  Accordingly, the Board has recharacterized the issue on appeal regarding service connection for depression.
 
In a May 2013 rating decision, the RO denied service connection for (i) bilateral knee disabilities, (ii) hearing loss, and (iii) tinnitus.  In that rating decision the RO also granted service connection for (i) chronic lumbar strain, (ii) mild degenerative changes, right hip, associated with chronic lumbar strain, (iii) mild degenerative changes, left hip associated with chronic lumbar strain, and (iv) radiculopathy of the left lower extremity associated with chronic lumbar strain.  For each of these four disabilities the RO assigned an effective date of February 9, 2011 for service connection, and an initial disability rating of 10 percent.

In a timely notice of disagreement submitted in March 2014, the Veteran initiated an appeal as to "all issues" in the May 2013 rating decision: the denials of service connection; and as to the assigned initial evaluations and effective dates for the disabilities granted service connection.  The Veteran subsequently perfected appeals as to the service connection claims, and as to the claims for higher initial ratings for the lumbar strain and left lower extremity radiculopathy disabilities.

In an August 2014 rating decision, the RO denied service connection for (i) headaches, (ii) hypertension, (iii) a psychiatric disorder identified as depression, and (iv) bilateral foot disorders.  The Veteran perfected appeals as to these four denials of service connection.

In an April 2015 rating decision, the RO: (i) assigned a 20 percent rating for chronic lumbar strain, effective December 16, 2014; (ii) assigned a zero percent rating for radiculopathy of the left lower extremity associated with chronic lumbar strain, effective December 16, 2014; (iii) proposed to sever service connection for mild degenerative changes, right hip; and (iv) proposed to sever service connection for mild degenerative changes, left hip.

In a May 2015 statement of the case, the RO addressed the issues of "continued entitlement to compensation" for the right and left hip disabilities; as well as issues of service connection for hearing loss and tinnitus, and of higher initial ratings for the lumbar strain and left lower extremity radiculopathy disabilities.  Thereafter, the Veteran timely filed a substantive appeal in which the Veteran perfected claims denoted as appeal of all issues in the statement of the case.

In a July 2015 rating decision, the RO severed service connection for mild degenerative changes, right hip, effective October 1, 2015; and severed service connection for mild degenerative changes, left hip, effective October 1, 2015.  In September 2015 the Veteran submitted a notice of disagreement as to the July 2015 rating decision severing service connection for the right and left hip disabilities.

The Veteran was represented by a private attorney in this matter.  See 38 C.F.R. §14.631(e)(1), (f)(1) (2015).  In February 2016, the Veteran's representative notified VA that the Veteran had requested the representative to withdraw from the Veteran's case, and since then had failed to communicate with the representative.  On that basis the representative requested to withdraw representation of the Veteran before VA.  The Veteran was notified that his appeal was certified to the Board in April 2015.  A representative may not withdraw his or her representation of a veteran more than 90 days after the certification of the appeal to the Board absent a showing of good cause on motion.  38 C.F.R. § 20.608(b) (2) (2015).  Given the circumstances described by the Veteran's representative, the Board finds that the representative has shown good cause, and therefore the motion to withdraw is granted.  Id.  

A number of issues discussed in the Remand below have been added to the appeal after the Veteran submitted notices of disagreement from rating decisions for which the RO did not issue a statement of the case.  See Manlincon v. West, 12 Vet. App. 238 (1999).

The issues numbered from 5 to 19 on pages one and two above are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1.  A psychiatric disability has not been shown to have onset in service, or a psychosis to be manifested to a compensable degree within one year from separation, or to be otherwise related to service.  

2.  A hypertension disability has not been shown to have onset in service, or to be manifested to a compensable degree within one year from separation, or to be otherwise related to service.  

3.  During the appeal period from February 9, 2011 to December 15, 2014, the Veteran's service-connected chronic lumbar strain was manifested by pain with limited motion.  Flexion of the lumbar spine was not productive of forward flexion of the lumbar spine limited to 60 degrees or less; and a combined range of motion of the thoracolumbar spine not 120 degrees or less; muscle spasm or guarding was not severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; incapacitating episodes are not shown; and associated objective neurologic abnormalities other than already service-connected lower extremity radiculopathy are not shown.

4.  During the period beginning from December 16, 2014, the Veteran's service-connected chronic lumbar strain was manifested by pain and limited motion, with forward flexion of the thoracolumbar spine limited to 40.  The symptoms are not productive of forward flexion limited to 30 degrees or less or of favorable ankylosis of the entire thoracolumbar spine; incapacitating episodes having a total duration of at least 4 weeks during a previous 12 months period; and associated objective neurologic abnormalities are not shown other than lower extremity radiculopathy.

5.  For the entire period of appeal from February 9, 2011, the Veteran's radiculopathy of the left lower extremity is manifested by symptoms productive of mild incomplete paralysis; and is not productive of moderate or more severe symptoms.


CONCLUSIONS OF LAW

1.  The criteria for service connection for a psychiatric disability have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015).

2.  The criteria for service connection for hypertension have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015).

3.  The criteria for a disability rating in excess of 10 percent for chronic lumbar strain for the period from February 9, 2011 to December 15, 2014, have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243 (2015).

4.  The criteria for a disability rating in excess of 20 percent for chronic lumbar strain for the period from December 16, 2014 are not met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243 (2015).

5.  The criteria for a disability rating in excess of 10 percent for radiculopathy of the left lower extremity for the period from February 9, 2011 to December 15, 2014, have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2015).

6.  The criteria for a disability rating of 10 percent, and no more, for radiculopathy of the left lower extremity for the period from December 16, 2014, have been met. 38 U.S.C.A. §§1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2015).
 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

VA has a duty to provide notice of the information and evidence necessary to substantiate a claim.  38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015).

Standard letters sent to the Veteran in June 2011, February 2013, and March 2014 satisfied the duty to notify provisions regarding the claims decided here.

VA also has a duty to provide assistance to substantiate a claim.  38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c).

The Veteran's service treatment records, personnel records, post-service VA and private treatment records have been obtained.  

In May 2013 and December 2014 VA afforded the Veteran examinations of his chronic back strain and left lower extremity radiculopathy disability rating claims.  These examinations are sufficient evidence for deciding the claims.  The reports are adequate as they are based upon consideration of the Veteran's prior medical history and examinations, describe the disabilities in sufficient detail so that the Board's evaluation is a fully informed one, and contain reasoned explanations. 

VA did not afford the Veteran an examination of the Veteran's claimed psychiatric disorder or hypertension.  However, an examination is not necessary under 38 C.F.R. § 3.159(c) (4).  As explained below, the evidence does not establish that the Veteran suffered an event, injury or disease in service, or establish a present headache disability during the appeal period, or even recurrent symptoms for either of the two claimed conditions; or indicate that any such claimed disability may be associated with service.  See 38 U.S.C.A. § 5103A (d); 38 C.F.R. §3.159(c) (4); McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Thus, VA's duty to assist has been met.
 
II. Service Connection

Legal Criteria

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015).  "To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 

Some chronic diseases, including cardiovascular-renal disease or endocarditis, are presumed by law and regulation to have been incurred in service even though there is no evidence of such disease during the period of service, if they become manifest to a degree of ten percent or more within a corresponding applicable presumptive period, and if following a period of service of 90 days or more of continuous active service.  38 U.S.C.A. §§ 1101, 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). 

Entitlement to service connection on the basis of a continuity of symptomatology after discharge under 38 C.F.R. § 3.303(b) is only available for the specific chronic diseases, including psychoses, listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Service connection may be granted if a disability is proximately due to or the result of a service-connected disability or if aggravation of a nonservice-connected disorder is proximately due to or the result of a service-connected disability.  38 C.F.R. § 3.310 (2015).

Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection.  See 38 U.S.C.A. § 1110; Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability).  Without proof of a present disability there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises and statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a) (1) (2015). 

Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters which can be observed and described by a lay person.  38 C.F.R. § 3.159(a) (2).  This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis.  Jandreau, 492 F.3d at 1377. 

In making all determinations, the Board must fully consider the lay assertions of record. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77.  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77.

The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).  The Board, as fact finder, must determine the probative value or weight of the admissible evidence.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

Evidence 

In a statement submitted in March 2014, the Veteran claimed entitlement to service connection for depression and hypertension.  

Review of the service treatment records shows no indications of any psychiatric or hypertension problems during either period of active service.  

At the February 1989 service separation examination at the time of separation from the second period of active service, the Veteran reported he had not had any depression, excessive worry, or nervous trouble of any sort, frequent trouble sleeping, or high blood pressure.  On examination at that time the evaluation was normal for psychiatric, neurologic, heart, and vascular system.  The summary of defects contains none referable to any conditions or problems of depression or hypertension.

VA treatment records show that when seen in February 2001 the provider indicated that the Veteran had hypertension.

Private treatment records from 2002 to 2009 include a report of an office visit in March 2002 that shows blood pressure was 118/84, and contains a notation of hypertension.  When seen in May 2002 the Veteran had hypertension and recorded blood pressure of 124/76.  At that time the physician also concluded with an impression of anxiety/depression/stress syndrome.  When seen in November 2002 the Veteran reported experiencing depression and increased stress, and noted recent stressors including that his wife had a myocardial infarction and he was working a lot of hours.

When seen in January 2004, the Veteran's blood pressure was 112/70.  In this regard the physician noted that the Veteran had cut back on smoking to three or four packs per day.  When seen in February 2005 the Veteran's blood pressure was 122/80.  At that time the report concluded with an impression that included "smoker, anxiety."  

Subsequent private treatment records show increasingly higher blood pressure readings over time and impressions of essential hypertension and major depression.  

During a February 2009 medical visit the Veteran was positive for depression.  The provider noted that mood swings continue; and that the Veteran was nervous and anxious, noting that after he divorced, his panic attacks went away.

During a May 2009 visit, on review of systems, the physician found the Veteran to be "Positive for depression (He feels better on the SSRI.  He states he is not depressed really.  More anger management problems.).  The patient is nervous/anxious and has insomnia."  The report concluded with an assessment including major depression, and essential hypertension, benign.

During a December 2009 examination, the problem list included diagnoses of major depression, cigarette smoker, and essential hypertension, benign.  Blood pressure was 154/96. 

VA treatment records show that when seen in August 2007, a posttraumatic stress disorder screening was negative.  When seen in February 2011, screening for depression was positive.  When seen in July 2011, the assessment included anxiety and hypertension.  Regarding the hypertension, the provider discussed concerns over smoking and caffeine as stimulants.  Subsequent VA treatment records include problem lists or assessments that include hypertension, depression, and anxiety.
 
Analysis

The evidence does not show that the claimed psychiatric disorder or hypertension had onset during active military service, and they are not shown to be otherwise related to active military service.  Further, the evidence does not show that any hypertension or psychosis manifested to a compensable degree within the first one-year period following service. 

There is no clinical evidence of any referable problems during service.  After service the first indications of any psychiatric or hypertension problems are not shown until the early 2000s, when private and VA treatment records show complaints or findings diagnosed as psychiatric disorders and hypertension.  None of the clinical records or statements by the Veteran since service shows a report by the Veteran that he has had hypertension or psychiatric symptomatology since service.  

While the Veteran is competent to report symptoms such as are perceptible by a lay person and associated with psychiatric or hypertension symptoms, he does not have the requisite training to diagnose whether he has a chronic psychiatric or hypertension condition, linked to service or to any service-connected disability. Such diagnoses are not simple conditions.  In this case, such opinion as to etiology is not a simple medical question capable of lay diagnosis and opinion.  See Jandreau, 492 F.3d at 1376-77.

Also, other than the mere claim of service connection for these conditions, the record does not show that the Veteran has reported having any continuity of related symptoms since service for any psychiatric symptoms or hypertension.  There is no medical opinion or other clinical evidence favorable to the Veteran's claim of a service connection for a psychiatric disability or hypertension. 

Conclusions 

Although the Veteran is competent to attest as to symptoms he has observed, he has not reported any symptoms observed since service regarding a psychiatric disorder or hypertension; and thus there are no reported symptoms to support a later diagnosis by any medical professional.  Consequently, as noted previously, a remand for a VA examination in connection with these claims is not necessary under McLendon.

The preponderance of the evidence is against the claims of service connection for psychiatric disability and hypertension; there is no doubt to be resolved; and service connection is not warranted for these two claims. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

III. Initial Disability Ratings

The Veteran claims entitlement to higher initial ratings than the 10 percent and 20 percent, respectively, currently assigned during the relevant periods prior to and since December 16, 2014 for his service-connected disabilities of chronic lumbar strain and radiculopathy of the left lower extremity associated with chronic lumbar strain.

 
Legal Criteria

Generally, disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4.  The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992).

In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending.  Powell v. West, 13 Vet. App. 31, 34 (1999).

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings."  Hart v. Mansfield, 21 Vet. App. 505 (2007). 

In determining the applicable disability rating, pertinent regulations do not require that all cases show all findings specified by the Rating Schedule; rather, it is expected in all cases that the findings be sufficiently characteristic as to identify the disease and the resulting disability, and above all, to coordinate the impairment of function with the rating.  38 C.F.R. § 4.21.  Therefore, the Board will consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).

The Veteran is competent to report complaints regarding symptoms capable of lay observation.  38 C.F.R. § 3.159(a) (2).  However, the statements of the Veteran must be considered with the clinical evidence of record and in conjunction with the pertinent rating criteria. 

Rating factors for a disability of the musculoskeletal system include functional loss. A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion, weakness, or atrophy.  38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).  In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system."  Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance."  Id., quoting 38 C.F.R. § 4.40.

38 C.F.R. § 4.71a, Diagnostic Code 5010 provides that arthritis due to trauma that is substantiated by X-ray findings is to be rated as degenerative arthritis.  38 C.F.R. § 4.71a, Diagnostic Code 5003 provides that degenerative arthritis that is established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  38 C.F.R. § 4.71a. 

Disabilities of the spine are evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25.  38 C.F.R. § 4.71a, The Spine, General Rating Formula for Diseases and Injuries of the Spine, Note (6). 

VA's Rating Schedule provides a single set of criteria for rating conditions of the spine, no matter which spine-related diagnostic code applies.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243.  

A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.  Id.  

A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  Id.

A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  38 C.F.R. § 4.71a.  A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent rating is warranted for unfavorable ankylosis of the entire spine.  Id. 

The notes below apply to the General Rating Formula for Diseases and Injuries of the Spine: 

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

Note (2): For VA compensation purposes, normal forward flexion of the lumbar spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees.  (See also 38 C.F.R. § 4.71a, Plate V).

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

Note (4): Round each range of motion measurement to the nearest five degrees.

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

Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is warranted when there are incapacitating episodes having a total duration of at least one week, but less than two weeks during the past 12 months.  A 20 percent rating is warranted when there are incapacitating episodes having a total duration of at least two weeks, but less than four weeks during the past 12 months.  A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months.  A 60 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months.  See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes

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.  Id., Note (1).

If intervertebral disc syndrome is presented in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes, or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment.  Id., Note (2).

Evidence and Analysis

A. Chronic Lumbar Strain Rating Based on Limitation of Motion

Rating in excess of 10 percent from February 9, 2011 to December 15, 2014

A May 2013 VA examination conducted during the period prior to December 16, 2014, is the most probative evidence for this claim and rating period.  The report shows that the Veteran's lumbar spine disability was limited to 85 degrees of forward flexion with pain starting at 70 degrees.  Extension was to 20 degrees, with pain starting at 15 degrees.  

Left and right lateral flexion motions were to 15 and 25 degrees, respectively, with pain starting at 10 and 20 degrees, respectively.  Left and right lateral rotation motions were to 15 and 25 degrees, respectively, with pain starting at 10 and 25 degrees, respectively.  The Veteran was able to perform repetitive-use testing.  After repetitions, there was objective evidence of painful motion but little additional limitations in range of motion.  There was no thoracolumbar spine ankylosis.

The report also contains findings that there was muscle spasm, but it did not result in abnormal gait or spinal contour.  The Veteran credibly reported that he had flare-ups that impact the function of the lumbar spine.  He reported that in the past 12 months he took two weeks off from work due to left leg pain and back pain, which he treated with narcotic mediation for the flare-ups

The examination report contains diagnoses of (1) chronic lumbar strain with radiculopathy, left lower extremity, (2) degenerative disk disease, and (3) lumbar arthritis.

Based on the foregoing, on the basis of limitation of motion, including consideration of factors under Deluca, the Veteran's chronic lumbar strain disability does not warrant a rating in excess of 10 percent for the period from February 9, 2011 to December 15, 2014.  In other words, even in contemplation of the Veteran's complaints of pain, the Board finds that such pain failed to cause sufficient functional impairment to limit the flexion of the thoracolumbar spine to 60 degrees or less, as is required for a higher rating under the General Rating Formula for Diseases and Injuries of the Spine.  See Mitchell, 25 Vet. App. at 38-43; DeLuca, 8 Vet. App. at 204-7.

To warrant a disability higher than 10 percent on the basis of range of motion, the evidence must show that the Veteran's lumbar spine disability is productive of forward flexion of the lumbar spine limited to 60 degrees or less; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  

Neither the May 2013 VA examination, or other clinical records or evidence, prior to December 16, 2014 contains findings productive of forward flexion of the lumbar spine limited to 60 degrees or less; or of a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  

Based on the foregoing, a higher rating than 10 percent is not warranted during the period from February 9, 2011 to December 15, 2014 based on range of motion criteria of  38 C.F.R. § 4.71a, even with consideration of findings of pain, weakness or other symptoms described in DeLuca.  See Thompson v. McDonald, 2015-7017 WL 877958 (Fed. Cir. Mar. 8, 2016).  Under the schedular criteria of § 4.71a for evaluation of the spine, all of the ratings for assignment result by meeting the corresponding schedular criteria, with or without symptoms such as pain-whether or not it radiates-stiffness, or aching in the area of the spine affected by residuals of injury or disease.  Id.

Rating in excess of 20 percent since December 16, 2014

The December 16, 2014 VA examination provides the most probative evidence for this rating period.  The report shows that the Veteran's lumbar spine disability range of motion of lumbar spine included: forward flexion of 40 degrees with pain from 0-40 degrees.  There was zero degrees of extension, 15 degrees of right lateral bending, 15 degrees of left lateral bending, 10 degrees of rotation to the right and left with pain complained of throughout the entire range of motion and there was no change in motion with repetition.

The Veteran complained of functional impairment due to his back pain.  There was less movement than normal, weakened movement, excess fatigability, and no incoordination.  There was pain on movement, but no swelling, no deformity, and no atrophy of muscles.  There was no instability of station, but there was a stiff-legged limp favoring the right knee when walking.  In sum there was pain, fatigability, and weakness, but no incoordination after repetitive motion of the lumbar spine.  There was an abnormal gait and a decreased lumbar lordosis with no scoliosis, and there was no muscle spasm.

The Veteran reported complaints of radicular pain, but the examiner recorded findings of there being no objective signs of radiculopathy.  The symptoms included right lower extremity moderate pain, and mild on the left.  The examiner found no paresthesias or numbness on the right or left.  The examiner concluded that the Veteran had no signs of radiculopathy, but "only symptoms."  The examiner determined that the levels involved would be right L4 to the femoral nerve with pain in the area of the right knee.  

The examiner stated that he did not consider the Veteran's complaints associated with objective findings to indicate a radiculopathy of either leg.  The examiner concluded that there were no other neurologic abnormalities and no intervertebral disc syndrome, but there had been periods of incapacitation in the last 12 months because of back pain.

The examiner opined that symptoms included pain, weakness, and fatigability, but no incoordination, which limited functional ability during flare-ups or if the joint would be repeatedly used over time.  The examiner commented that the Veteran had developed marked limitation of motion with pain during the course of the examination.  The examiner stated that he did not agree with the previous diagnosis of left lower extremity radiculopathy on the basis of the present examination, which did not show that the Veteran had a left lower extremity radiculopathy.

To warrant a disability higher than 20 percent on the basis of range of motion, the evidence must show that the Veteran's lumbar spine disability is productive of a forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243.   Based on the foregoing, on the basis of limitation of motion, including consideration of factors under Deluca, the Veteran's lumbar spine disability does not warrant a disability rating in excess of the existing 20 percent assigned during the period since December 16, 2014.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  Expressed another way, the Veteran's pain failed to cause sufficient functional impairment to limit the flexion of the thoracolumbar spine to 30 degrees or less, as is required for a higher rating under the General Rating Formula for Diseases and Injuries of the Spine.  See Thompson v. McDonald, 2015-7017 WL 877958 (Fed. Cir. Mar. 8, 2016)

Therefore, a disability rating in excess of 20 percent is not warranted from December 16, 2014 based on range of motion criteria.  


      B.  Degenerative Disc Disease Rating Based on Incapacitating Episodes

There is no clinical treatment record evidence of any significant number of incapacitating episodes of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician during the appeal period so as to warrant a rating in excess of 10 percent prior to December 16, 2014 or in excess of 40 percent since that date.  

During the May 2013 VA examination the Veteran reported that he had taken off two weeks from work due to pain in the left leg and back.  The December 16, 2014 VA examination report noted that the Veteran had had no intervertebral disc syndrome, but that he had had periods of incapacitation in the last 12 months due to back pain.  

There is no evidence or claim, however, that during the relevant periods, the Veteran has had incapacitating episodes involving one or more periods of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician. 

Thus, the Veteran's condition due to his chronic lumbar strain does not warrant a compensable disability rating under criteria of the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  Thus a rating higher than 10 percent prior to December 16, 2014, or higher than 40 percent from December 16, 2014, is not warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 
      
      
C.  Associated Objective Neurologic Abnormalities

As noted previously, General Rating Formula for Diseases and Injuries of the Spine, Note (1) provides that any associated objective neurologic abnormalities are to be separately evaluated under an appropriate diagnostic code.  

Consideration of any associated objective neurologic abnormalities of the left lower extremity is addressed below.  Otherwise, review of the VA examinations conducted during the pendency of the appeal show that the Veteran has not claimed, and there is no clinical evidence showing the presence of any other objective neurologic abnormalities associated with the service-connected chronic lumbar strain, such as bowel or bladder impairment.  

There are no findings or diagnosis of neurological pathology that would allow a separate compensable evaluation for any associated objective neurologic abnormalities other than the service-connected radiculopathy of the left lower extremity associated with chronic lumbar strain.

Radiculopathy of the Left Lower Extremity

The service-connected radiculopathy of the left lower extremity associated with chronic lumbar strain is currently evaluated under 38 C.F.R. § 4.124, Diagnostic Code 8520, as 10 and zero percent disabling for the respective periods prior to and since December 16, 2014.  

Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis.  38 C.F.R. § 4.123 (2015).  The maximum rating which may be assigned for neuritis not characterized by organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis.  Id.  

Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate, incomplete paralysis. Id.  

In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. Id.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id.  

The ratings for peripheral nerves are for unilateral involvement; when bilateral, they are combined with application of the bilateral factor.  Id.  The use of terminology such as "mild," "moderate" and "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue.  38 C.F.R. §§ 4.2, 4.6.

Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic, and therefore, neuritis and neuralgia of that nerve.  38 U.S.C.A. § 4 .124a.  Complete paralysis of that nerve, which is rated as 40 percent disabling, contemplates symptoms that the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost.  Id.

Disability ratings of 10 percent, 20 percent, 40 and 60 percent are assignable, respectively, for incomplete paralysis which is of mild, moderate, moderately severe, or severe, with marked muscular atrophy degree.  Id.  Diagnostic Code 8620 refers to neuritis of the nerve and Diagnostic Code 8720 refers to neuralgia of the nerve.

During the May 2013 VA examination, straight leg raising test was negative for the right lower extremity and positive for the left.  The examiner recorded findings that the Veteran had radicular pain or other signs or symptoms due to radiculopathy in the left lower extremity.  The left lower extremity manifested mild constant pain; moderate intermittent pain; moderate paresthesias; and mild numbness.  The examiner concluded there was involvement of L4/L5/S1/S2/S3 nerve roots (sciatic nerve).  The examiner estimated that the severity of the left lower extremity radiculopathy was mild.

Strength in the left lower extremity was 5/5 or 4/5 throughout and there was no muscle atrophy.  Sensory examination was normal or decreased; none were absent.
All neurological tests are normal or mild, with no muscle impairment.

During the Veteran's December 2014 VA examination, the examiner opined that the Veteran's complaints associated with objective findings did not indicate a radiculopathy of the left lower extremity.  However, the remainder of the clinical record evidence since during service reflects the presence of left lower extremity radiculopathy.  The symptoms noted during this VA examination included the Veteran's report of mild left lower extremity symptoms including pain.  Straight leg raising while sitting was positive at 70 degrees and while supine was positive at 30 degrees.  Other findings were essentially the same as in the earlier VA examination in May 2013.  

These findings overall reflect a condition productive of a mild degree of severity throughout the period on appeal, both before and since December 16, 2014, but no more severe than that.  Thus, for the left lower extremity radiculopathy, a rating higher than 10 percent is not warranted prior to December 16, 2014, and a rating of 10 percent but not higher is warranted for the period since December 16, 2014.  There is no evidence on which to find that the radiculopathy of the left lower extremity is productive of a moderate or more severe level of disability at any time during the appeal period.

      D.  Conclusions

The Veteran's radiculopathy of the left lower extremity associated with the chronic lumbar strain warrants a separate 10 percent rating for the period since December 16, 2014.

Beyond that grant, on the basis of rating criteria for limitation of motion, incapacitating episodes, or based on associated objective neurologic abnormalities, the preponderance of the evidence is against the grant of a schedular rating for chronic lumbar strain in excess of the existing 10 percent prior to December 16, 2014, or in excess of 20 percent from December 16, 2014; and against the grant of a schedular rating for radiculopathy of the left lower extremity in excess of 10 percent at any time; or of any other separate rating on any other basis.  There is no doubt to be resolved and higher or separate ratings are not warranted.  See 38 U.S.C.A. §5107(b); 38 C.F.R. §§ 3.102, 4.3.

In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test for determining whether a veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) if the first two steps show that the rating schedule is inadequate then the final step requires the disability to be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service.  See Thun v. Peake, 22 Vet. App. 111, 115-16   (2008).

The Board finds that the first Thun element is not satisfied. The Veteran's service-connected low back disability is manifested by signs and symptoms such as limitation of motion, pain on motion, weakness, fatigability, radicular pain, an abnormal gait, and a decreased lumbar lordosis.

These signs and symptoms, and their resulting impairment, are contemplated by the rating schedule.  The diagnostic codes in the rating schedule corresponding to disabilities of the spine provide disability ratings on the basis of limitation of motion and incapacitation.  For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which for example may be manifested by decreased or abnormal excursion, strength, speed, coordination, or endurance.  38 C.F.R. § 4.40; Mitchell, 25 Vet. App. at 37.  For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing.  38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. 

The left lower extremity radiculopathy associated with the chronic lumbar strain, manifested pain, paresthesias, and numbness, with involvement of L4/L5/S1/S2/S3 nerve roots (sciatic nerve).  These signs and symptoms, and their resulting impairment, are contemplated by the rating schedule.  The diagnostic codes in the rating schedule corresponding to disabilities of the peripheral nerves provide disability ratings on the basis of the extent of paralysis, loss of reflexes, muscle atrophy, sensory disturbances and pain.

In summary, the schedular criteria for musculoskeletal disabilities and peripheral nerves contemplate a wide variety of manifestations of functional loss.  Moreover, the neurological manifestations of the Veteran's radiculopathy are contemplated by the schedular rating criteria which consider incomplete paralysis of the nerve manifested by pain, numbness, and tingling.

Given the variety of ways in which the rating schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture of his lumbar spine disability and associated left lower extremity radiculopathy.  In short, there is nothing exceptional or unusual about the Veteran's low back disability because the rating criteria reasonably describe his disability level and symptomatology.  Thun, 22 Vet. App. at 115.  Accordingly, referral for extraschedular consideration is not warranted.

Also, according to Johnson v. McDonald, 762 F.3d 1362   (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b)] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations."  Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. 

In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. 

As noted above, the orthopedic complaints, including range of motion and functional loss, are contemplated by the schedular rating criteria for lumbar spine disabilities and the neurologic complaints of the left lower extremity, are contemplated by the schedular rating criteria for these disabilities.  Accordingly, the Board finds in this case, there is neither allegation nor indication that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria.

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

The Veteran has made no explicit claim that he is unemployable due to his service-connected lumbar spine or left lower extremity radiculopathy disabilities.  The record does not show that he is unable to secure or follow a substantially gainful occupation as a result of these disabilities.  The Veteran has not reported that he is unemployed or employed in marginal employment due to these disabilities.  

At the recent VA examination in May 2013 the examiner opined that the Veteran was unable to climb ladders and had pain with extended walking and standing, but he was able to do sedentary work; and had no restrictions for job activities required for sedentary work.  At the recent VA examination in September 2014, the Veteran reported he was still working.  There is no opinion on file to the effect that the low back disability and/or left lower extremity radiculopathy is productive of impairment so severe that it would be impossible for the average person to follow a substantially gainful occupation.  See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.  As such, the Board finds that a claim for TDIU is not raised by the record.

ORDER

Service connection for a psychiatric disorder is denied. 

Service connection for hypertension is denied. 

A disability rating in excess of 10 percent prior to December 16, 2014 for chronic lumbar strain is denied.

A disability rating in excess of 20 percent from December 16, 2014 for chronic lumbar strain is denied.

A disability rating in excess of 10 percent prior to December 16, 2014 for radiculopathy of the left lower extremity associated with chronic lumbar strain is denied.

A 10 percent disability rating from December 16, 2014 for radiculopathy of the left lower extremity associated with chronic lumbar strain is granted, subject to the laws and regulations governing the payment of monetary awards.


REMAND

A remand is necessary for the following reasons.  First, in a May 2013 rating decision the RO granted service connection for: 

(1) Chronic lumbar strain, which was assigned an initial disability rating of 10 percent, 
(2) Radiculopathy of the left lower extremity associated with chronic lumbar strain, which was assigned an initial disability rating of 10 percent, 
(3) Mild degenerative changes, left hip, which was assigned an initial disability rating of 10 percent, and 
(4) Mild degenerative changes, right hip, which was assigned an initial disability rating of 10 percent.  
 
In the May 2013 rating decision the RO assigned an effective date of February 9, 2011 for service connection for each of the four disabilities.  

In March 2014 the Veteran submitted a notice of disagreement initiating an appeal as to the assigned evaluations and effective dates for service connection for each of the above four disabilities. 

In May 2015 the RO issued a statement of the case regarding the initial disability rating for the chronic lumbar strain, and for the radiculopathy of the left lower extremity; however, the RO has not issued a statement of the case with respect to the effective date for service connection for these two disabilities.  Because the RO has not yet issued a statement of the case on these two claims, remand is required. See Manlincon v. West, 12 Vet. App. 238 (1999).  

Following the May 2013 rating decision and veteran's March 2014 notice of disagreement, in an April 2015 rating decision, the RO proposed to sever service connection for (i) mild degenerative changes, right hip, and for (ii) mild degenerative changes, left hip.  In the May 2015 statement of the case the RO addressed the issues of continued entitlement to compensation for the right and left hip disabilities.  The RO did not address the issues of entitlement to an effective date prior to February 9, 2011 for service connection for each of the two hip disabilities.  

Then in a July 2015 rating decision the RO severed service connection for the (i) mild degenerative changes, right hip, and for (ii) mild degenerative changes, left hip.  Then in September 2015 the Veteran submitted a notice of disagreement from that rating decision thereby initiating an appeal as to the RO's decision to sever service connection for both of these disabilities.  Because the RO has not yet issued a statement of the case on these two claims, remand is required.  See Manlincon v. West, 12 Vet. App. 238 (1999).

In sum, during the pendency of the appeal and prior to the severance of service connection for left and right hip disabilities the Veteran previously initiated appeals by filing a notice of disagreement regarding entitlement to:

(i) An effective date prior to February 9, 2011, for service connection for mild degenerative changes, right hip; 
(ii) An effective date prior to February 9, 2011, for service connection for mild degenerative changes, left hip;
(iii) An initial disability rating in excess of 10 percent for mild degenerative changes, right hip;
(iv) An initial disability rating in excess of 10 percent for mild degenerative changes, left hip.

These four issues normally require remand for the RO to issue a statement of the case, however, they are inextricably intertwined with two issues-for which the Veteran has initiated an appeal by submitting a notice of disagreement-of whether the severance of service connection for (i) mild degenerative changes, right hip, and for (ii) mild degenerative changes, left hip, was proper.  Thus those four issues must be adjudicated in connection with the adjudication of the two severance claims on appeal.

The Veteran claims service connection for bilateral knee disabilities, primarily on the basis that he has bilateral knee disabilities that are due to or aggravated by his claimed left and right hip disabilities, although also to some extent as etiologically related to his service-connected lumbar strain disability.  The appeal of the claims for service connection for bilateral knee disabilities is inextricably intertwined with the Veteran's appeal regarding whether the severance of service connection for (i) mild degenerative changes, right hip, and for (ii) mild degenerative changes, left hip, was proper.  Thus the bilateral knee disability claims must be deferred pending resolution of the two severance issues.

A remand of the claim for service connection for a headache disorder is necessary to afford the Veteran an examination of the claimed disability given that the Veteran is competent to attest to experiencing headaches.  Similarly, an examination is warranted regarding the Veteran's tinnitus claim as the Veteran is competent to report as to whether he experiences symptoms of tinnitus, such as ringing or hissing in the ears.

A remand of the claims for service connection for hearing loss is also warranted.  

Review of the service treatment records reveal that audiology examinations conducted over the course of the Veteran's two periods of active service show that the Veteran's hearing acuity worsened between the time of his August 1983 enlistment examination prior to his first period of active service, and his February 1989 separation examination.  Also, during the first period of active service the Veteran was seen in October 1986 for complaints of hearing loss.  Findings included scarring of the tympanic membranes bilaterally and reduced hearing.  

Reports of two reference audiograms taken in March 1988 and January 1989 generally show increased auditory thresholds at frequencies between 500 and 4000 Hertz when compared with earlier audiological examinations beginning with the August 1983 enlistment examination.  Each time the audiogram report contains remarks that the Veteran is routinely exposed to hazardous noise, and remarks of hearing loss profile is H1. 

The service treatment records indicate findings of other injury of the ears as well including scarring of the tympanic membranes bilaterally and reduced hearing.  
For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the above frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385; see also Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes). 

The Veteran essentially asserts his belief that his hearing loss meets the criteria for VA purposes to constitute a hearing loss disability; however, there are no current findings on which to verify such finding with respect to either ear.  The evidence on file does not contain any current audiology findings to show whether the Veteran's impaired hearing meets the criteria to be considered a disability under 38 C.F.R. §3.385.  The Veteran apparently failed to report for scheduled VA examination in May 2013; however, in a March 2014 notice of disagreement the Veteran requested that his VA examination be rescheduled, noting that he understood the importance of attending any scheduled examinations.

As such, this matter must be remanded to afford the Veteran a VA examination.  See Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes).

The Veteran claims service connection for bilateral foot disabilities and has not undergone any VA examination to address whether he has such disabilities that are related to service.  The report of an August 1983 enlistment examination prior to the first period of active service from March 1984 to February 1987, there is no abnormal evaluation on examination of the feet.  The treatment records during that period of active service shows no evidence of complaints, treatment, or findings regarding any foot trouble.  

The report of a May 1987 enlistment examination prior to the second period of active service from September 1987 to March 1989 shows that on examination of the feet, the examiner noted the presence of mild pes planus, asymptomatic.  At the time of a February 1989 separation examination, the evaluation of the feet was normal.  Review of post-service clinical records do not show any complaints, findings, or diagnosis referable to a bilateral foot disorder.  

A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a).  Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).  

However, given the May 1987 enlistment examination clinical finding of bilateral pes planus, which was not shown in the service treatment records during the first period of service, which ended only a few months before, there are questions remaining as to whether a bilateral foot condition, to specifically include pes planus, had its onset during the first period of service or, if not, was aggravated during the second period of service.  As such, this matter must be remanded to afford the Veteran a VA examination. 

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.  Issue a statement of the case on the issues of entitlement to an effective date prior to February 9, 2011 for service for (i) chronic lumbar strain; and (ii) radiculopathy of the left lower extremity associated with chronic lumbar strain.  Notify the Veteran of the requirements to perfect an appeal.  If the Veteran perfects an appeal, return the case to the Board.

2.  Issue a statement of the case on the issues of whether the severance of service connection for (i) mild degenerative changes, right hip, and for (ii) mild degenerative changes, left hip, was proper.  Notify the Veteran of the requirements to perfect an appeal.  If the Veteran perfects an appeal, return the case to the Board.

3.  After completing directive number 2 above, issue a statement of the case on the issues of entitlement to: 
(i) an effective date prior to February 9, 2011, for service connection for mild degenerative changes, right hip; (ii) an effective date prior to February 9, 2011, for service connection for mild degenerative changes, left hip; (iii) an initial disability rating in excess of 10 percent for mild degenerative changes, right hip; (iv) an initial disability rating in excess of 10 percent for mild degenerative changes, left hip; (v) service connection for a right knee disorder; and (vi) service connection for a right knee disorder.  Notify the Veteran of the requirements to perfect an appeal.  If the Veteran perfects an appeal, return the case to the Board.

4.  Obtain any outstanding VA or private treatment records pertinent to the headaches, bilateral hearing loss, tinnitus, and bilateral foot disorder service connection claims.

5.  Notify the Veteran that he may submit statements from himself and others who have observed the Veteran describing their impressions regarding the onset and chronicity of any headache disorder, hearing loss, tinnitus, or bilateral foot conditions since service.  Provide the Veteran with an appropriate period of time for the receipt of such requested lay evidence.

6.  After completion of the above development in directives number 4 and 5, schedule the Veteran for special VA examinations to determine the nature extent, onset and likely etiology of any headache disorder, hearing loss, tinnitus, or left or right foot disorder found to be present.  

The entire electronic claims file must be provided to each respective examiner, and the examiner must review this remand and all pertinent records associated with the claims file.  

Each examiner is to elicit from the Veteran a history of pertinent symptomatology during and since service for each of the claimed disabilities.  In offering opinions, the examiner must acknowledge and discuss the Veteran's report of a continuity of relevant symptoms since service, and any current relevant symptoms and diagnosis regarding the claimed conditions.  

For any opinion expressed in response to requests below, the examiner must provide a complete rationale and a discussion of the medical principles involved. 

Headache Disorder

The examiner is to elicit from the Veteran a history of headache symptoms in service and of any associated injury or disease during and since service, and of pertinent headache symptoms since service.  

The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any headache disability found to be present: 

(i) had its onset in service;  

(ii) is otherwise related to injury or disease in service.

In providing this opinion, the examiner must consider any report from the Veteran of headache symptoms in service or any associated injury or disease during and since service, and of pertinent headache symptoms since service.  

Hearing Loss and Tinnitus: The examiner is to elicit from the Veteran a history of noise exposure in service and of any other injury or disease during and since service, and of pertinent auditory symptoms of hearing loss and tinnitus since service.  

The examiner must provide a medical opinion as to whether it is at least as likely as not that any hearing loss disability or tinnitus found to be present: 

(i) Had its onset in service;  

(ii) In the case of an organic disease of the nervous system as etiology, was manifested within one year of discharge from service; or 

(iii) Is otherwise related to injury or disease in service to include routine exposure to hazardous noise, and inservice treatment for bilateral tympanic membrane scarring.

The examiner must specifically acknowledge and discuss the Veteran's competent and credible reports of exposure to noise associated with his primary specialty of "hawk fire control crewmember" and other duties he reports.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and relied on the absence of evidence in the Veteran's service medical records to provide a negative opinion).

The examiner should also note that the absence of in-service evidence of a hearing disability (as defined by VA under 38 C.F.R. § 3.385) during service is not fatal to a claim for service connection.  See Ledford v. Derwinski, 3 Vet. App. 87, 89  (1992).  Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for a hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury during active service.  See Hensley v. Brown, Vet. App. 155, 159 (1993).

Bilateral Foot Disorder:  Any and all studies, tests, evaluations, and physical examination deemed necessary should be performed, to include any indicated diagnostic imaging or other indicated studies or tests. 

The examiner must identify any present left or right foot disability, including any disability which has been diagnosed at any point during the pendency of the respective claim appealed (even if currently resolved).  
 
For any such left or right foot disability identified as being present at any point during the pendency of the appealed claim, the examiner must first opine as to whether it is at least as likely as not that such foot disorder commenced during, or is otherwise related to, the Veteran's military service. 

If pes planus is diagnosed, the examiner should note the indication of pes planus on the Veteran's May 1987 enlistment examination for his second period of military service and opine as to whether it is at least as likely as not that pes planus commenced during the Veteran's first period of military service or, if not, if it was aggravated during the Veteran's second period of military service.  

In answering these questions, the examiner must address the Veteran's statements and history regarding the claimed foot conditions.

7.  Finally, readjudicate the claims remaining on appeal.  If a benefit sought remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration.

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


This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
M. HYLAND
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs