Citation Nr: 1756864	
Decision Date: 12/08/17    Archive Date: 12/15/17

DOCKET NO.  14-01 953	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Muskogee, Oklahoma 


THE ISSUES

1.  Entitlement to service connection for a skin disability, to include skin cancer.

2.  Entitlement to a rating in excess of 40 percent for spondyloarthropathy with intervertebral disc syndrome (IVDS).

3.  Entitlement to a rating in excess of 30 percent for chondromalacia and arthritis of the right knee, prior to February 23, 2016.

4.  Entitlement to a rating in excess of 40 percent for chondromalacia and arthritis of the right knee, from February 23, 2016.

5.  Entitlement to a rating in excess of 20 percent for right knee instability, from February 23, 2016.

6.  Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss on an extra-schedular basis, pursuant to 38 C.F.R. § 3.321 (b)(1).

 7.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Robert C. Brown, Jr., Attorney


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

B. Elwood, Counsel


INTRODUCTION

The Veteran served on active duty from March 1973 to November 1976.

This appeal to the Board of Veterans' Appeals (Board) arose from December 2012, October 2013, and November 2013 rating decisions.

In the December 2012 rating decision, the RO granted service connection and assigned an initial rating of 10 percent for bilateral hearing loss, effective April 10, 2012.  The RO also, inter alia, denied the Veteran's claim for a rating in excess of 40 percent for spondyloarthropathy, and his claim for a rating in excess of 30 percent for chondromalacia and arthritis of the right knee.  In January 2013, the Veteran filed a notice of disagreement (NOD) with the assigned disability ratings.  A statement of the case (SOC) was issued in January 2014, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later that month.

In the October 2013 rating decision, the RO, inter alia, denied service connection for skin cancer.  In November 2013, the Veteran filed an NOD.  An SOC was issued in January 2014, and the Veteran filed a substantive appeal later that month.

In the November 2013 rating decision, the RO, inter alia, denied a TDIU.  Later that month, the Veteran filed an NOD.  An SOC was issued in January 2014, and the Veteran filed a substantive appeal later that month.

Because the appeal involves disagreement with the initial rating assigned following the award of service connection for bilateral hearing loss, the Board has characterized this matter in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). 

In May 2014, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge (VLJ).  A transcript of that hearing is of record. 

During the May 2014 Board hearing, the Veteran's representative submitted additional evidence directly to the Board, with a waiver of initial RO consideration of the evidence.  This evidence is accepted for inclusion in the record on appeal.  See 38 C.F.R. §§ 20.800, 20.1304 (2017). 

In March 2015, the Board denied entitlement to an initial compensable rating for a surgical scar of the right knee and entitlement to an initial schedular rating in excess of 10 percent for bilateral hearing loss.  The Board also expanded the appeal to include the separate matter of entitlement to an initial rating in excess of 10 percent for bilateral hearing loss on an extra-schedular basis pursuant to 38 C.F.R. § 3.321 (b)(1), and remanded this matter, as well as the claim for service connection for skin cancer, the claims for increased ratings for spondyloarthropathy with IVDS and chondromalacia and arthritis of the right knee, and the claim for a TDIU, to the agency of original jurisdiction (AOJ) for further development.  

After accomplishing the requested actions, the AOJ, inter alia, granted an increased (40 percent) rating for chondromalacia and arthritis of the right knee and granted a separate 10 percent rating for right knee instability, both effective from February 23, 2016.  The AOJ otherwise continued to deny service connection for skin cancer, higher schedular ratings for spondyloarthropathy with IVDS and chondromalacia and arthritis of the right knee, a higher extra-schedular rating for bilateral hearing loss, and a TDIU (as reflected in a March 2016 supplemental SOC (SSOC)), and returned these matters to the Board for further appellate consideration.

Regarding characterization of the issues on appeal, based on a review of the record, it appears that the Veteran has suffered from skin disability(ies) other than skin cancer.  Thus, the Board has re-characterized the skin issue on appeal as encompassing a claim for service connection for all possible disabilities pertaining to the skin, as reflected on the title page.  See generally Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that, in determining the scope of a claim, the Board must consider the claimant's description of the claim, the symptoms described and the information submitted or developed in support of the claim).

With respect to the claim for an increased rating for the service-connected right knee disability, as explained in more detail below, the Board is deciding the claim for an increased rating for chondromalacia and arthritis of the right knee during the period prior to February 23, 2016, but is remanding the claim for the period since that date for further development.  Hence, the claim has been bifurcated, as reflected on the title page.  See Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011) (bifurcation of a claim generally is within VA's discretion).  Moreover, although the Veteran did not appeal the initial 20 percent rating assigned for right knee instability, on these facts, the Board considers the matter of a higher rating for that disability as part of the evaluation of the right knee disability.

The Board points out that the Veteran had also perfected an appeal with regard to a claim for service connection for an acquired psychiatric disability and that the Board had remanded this matter in March 2015 for further development.  In the April 2016 rating decision, the RO granted service connection for severe depression with anxiety, and thereby resolved the appeal as to that issue.  

In May 2016, the Veteran filed an NOD with respect to the effective date assigned for the award of service connection for severe depression with anxiety in the April 2016 rating decision.  An SOC was issued in March 2017, the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veteran's Appeals) later in March 2017, and a "Certification of Appeal" form (VA Form 8) pertaining to the earlier effective date matter was completed in August 2017.  Regardless, the issue of entitlement to an earlier effective date for the award of service connection for severe depression with anxiety cannot yet be addressed by the Board because there is a pending request for a Board hearing.  This matter may be the subject of a future Board decision, if necessary.

As a final preliminary matter, the Board notes that, while the Veteran previously was represented by Oklahoma Department of Veterans Affairs, in January 2013, the Veteran granted a power-of-attorney in favor of a private attorney with regard to the claims on appeal.  The Veteran's current attorney has submitted written argument on his behalf and represented him during his hearing.  The Board recognizes the change in representation.

Also, while the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA (Legacy Content Manager) claims processing systems.

The Board's decision addressing the claims for higher ratings for spondyloarthropathy with IVDS, chondromalacia and arthritis of the right knee prior to February 23, 2016, and bilateral hearing loss on an extra-schedular basis is set forth below.  The claims for service connection for a skin disability, for higher ratings for chondromalacia and arthritis of the right knee and right knee instability (both since February 23, 2016), and for a TDIU are addressed in the remand following the order; these matters are being remanded to the AOJ.  VA will notify the Veteran when further action, on his part, is required.
FINDINGS OF FACT

1.  All notification and development actions needed to fairly adjudicate each claim herein decided have been accomplished.

2.  Pertinent to the Veteran's April 10, 2012 claim for increase, his spondyloarthropathy with IVDS has been manifested by pain, tenderness, fatigue, weakness, lack of endurance, guarding, muscle spasms, an impaired gait, and painful and limited motion of the thoracolumbar spine; there is no spinal ankylosis or incapacitating episodes due to IVDS requiring bedrest and treatment prescribed by a physician.

3.  From April 10, 2012 through April 3, 2013, the symptoms of the Veteran's chondromalacia and arthritis of the right knee included pain and limitation of motion, to include flexion to between 90 and 100 degrees with pain and extension to 0 degrees, and reports of flare ups of right knee symptoms, during which knee motion was limited by approximately 50 percent; there was no knee ankylosis, locking, tibia/fibula impairment, or genu recurvatum.

4.  From April 4, 2013 through February 22, 2016, the symptoms of the Veteran's chondromalacia and arthritis of the right knee included pain and limitation of motion, to include flexion to 65 degrees with pain and extension to 0 degrees, and reports of flare ups of right knee symptoms, during which knee motion was limited by approximately 50 percent; there was no knee ankylosis, locking, tibia/fibula impairment, or genu recurvatum.

5.  Since the April 10, 2012 effective date of service connection, the schedular criteria have been adequate to rate the Veteran's bilateral hearing loss. 


CONCLUSIONS OF LAW

1.  The criteria for a rating in excess of 40 percent for spondyloarthropathy with IVDS are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.71a, General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes (DCs) 5235-5242 (2017), and Formula for Rating IVDS Based on Incapacitating Episodes (for DC 5243) (2017).

2.  The criteria for a 10 percent rating, from April 10, 2012 through April 3, 2013, and a 20 percent rating, from April 4, 2013 through February 22, 2016, for chondromalacia and arthritis of the right knee, on the basis of limitation of knee flexion, are met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5003, 5260 (2017).

3.  The criteria for a 50 percent rating, from April 10, 2012 through February 22, 2016, for chondromalacia and arthritis of the right knee, on the basis of limitation of knee extension, are met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5003, 5261 (2017).

4.  The criteria for an initial rating in excess of 10 percent for bilateral hearing loss, on an extra-schedular basis pursuant to 38 C.F.R. § 3.321 (b)(1), are not met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Due Process Considerations

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096  (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (2012)) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, and 3.326(a) (2017).

The appeal for a higher initial rating for bilateral hearing loss arose from the Veteran's disagreement with the initial rating assigned after the award of service connection.  The courts have held, and VA's General Counsel has agreed, that where an underlying claim of service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice.  See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). 

The United States Court of Appeals for Veterans Claims (Court) has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as initial rating) are appropriately addressed under the notice provisions of 38 U.S.C. §§ 5104  and 7105.  See Goodwin v. Peake, 22 Vet. App. 128 (2008).  Notably, however, after the Veteran's disagreement with the initial rating assigned for bilateral hearing loss, the criteria for higher ratings for hearing loss (to include on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b)(1)) was set forth in the January 2014 SOC.

As for the remaining increased rating matters being decided herein, after a complete or substantially complete application for benefits is received, notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing.  See, e.g., Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)).  

In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings as well as information regarding the effective date that may be assigned.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the AOJ.  Id.; Pelegrini, 18 Vet. App. at 112.  See also Disabled American Veterans  v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).  However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Id.   

In this appeal, in a May 2012 letter, the RO provided notice to the Veteran regarding what information and evidence was needed to substantiate his claims for increased ratings for the service-connected back and right knee disabilities, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA.  The May 2012 letter also provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations.  The December 2012 RO rating decision reflects the initial adjudication of the increased rating claims after issuance of the May 2012 letter.  Hence, this letter meets Pelegrini's and Dingness/Hartman's content of notice requirements, as well as the VCAA's timing of notice requirement.

The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters decided herein.  Pertinent evidence associated with the claims file consists of VA and private treatment records, Social Security Administration (SSA) disability records, and the reports of June 2012, March 2013, April 2013, and February 2016 VA back, knee, and audiological examinations.  Also of record and considered in connection with the appeal is the transcript of the Veteran's May 2014 Board hearing, along with various written statements provided by the Veteran and his representative, on his behalf.  The Board finds that no additional AOJ action to further develop the record in connection with the matters decided herein, prior to appellate consideration, is warranted.

As for the May 2014 hearing, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103 (c)(2) requires that the Decision Review Officer or VLJ who chairs a hearing fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked.  In this case, the Board finds that there has been substantial compliance with the duties set forth in 38 C.F.R. § 3.103 (c)(2) and that the hearing was legally sufficient. 
During the May 2014 hearing, the Veteran appeared, along with his authorized attorney, and provided testimony on the matters herein decided.  At that time, the undersigned VLJ identified the issues on appeal and information was solicited regarding the history and severity of the Veteran's disabilities and the treatment received for the disabilities.  Although the undersigned did not explicitly suggest the submission of any specific, additional evidence in connection with the matters decided herein, on these facts, such omission was harmless.  The hearing testimony revealed the need for additional development, which was sought on subsequent remand.

The Board also finds that that there has been substantial compliance with its March 2015 remand directives relative to the matters decided herein.  See Dyment v. West¸ 13 Vet. App. 141, 146-47 (1999); see also D'Aries v. Peake, 22 Vet. App. 97, 105-106 (2008).  Specifically, the Board directed that the AOJ obtain all outstanding VA treatment records, request that the Veteran identify any outstanding treatment records and complete the appropriate authorization so as to allow VA to obtain any outstanding private treatment records, obtain any outstanding treatment records identified by the Veteran, afford the Veteran VA examinations to obtain information as to the severity of his service-connected back and right knee disabilities, and adjudicate the remaining matters on appeal.

All outstanding VA treatment records have been obtained and associated with the Veteran's claims file and VA back and knee examinations were conducted in February 2016.  Also, in letters dated in April and August 2015, the AOJ requested that the Veteran identify any outstanding treatment records and complete the appropriate authorization so as to allow VA to obtain any outstanding private treatment records.  The Veteran subsequently submitted completed authorization forms (VA Forms 21-4142 and 21-4142a) for pertinent treatment records from Dr. D.P. Ellis.  Thereafter, the AOJ requested all treatment records from Dr. Ellis and the records have been obtained and associated with the claims file.  The Veteran has not identified any other outstanding private treatment records or completed any authorization form to allow VA to obtain any such records.  VA is only required to seek pertinent records that are adequately identified and for which necessary releases are furnished.  38 U.S.C. § 5103A (b); 38 C.F.R. §§ 3.159 (c)(1)(i), (c)(2)(i) (requiring a claimant to cooperate fully with VA's efforts to obtain federal and non-federal records); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (the duty to assist is not always a one-way street).  Thus, VA has no further duty to attempt to obtain any additional treatment records.  Moreover, the AOJ re-adjudicated the Veteran's claims by way of the March 2016 SSOC.

In summary, the duties imposed by the VCAA have been considered and satisfied.   There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the matters herein decided.  As such, the Veteran is not prejudiced by the Board proceeding to a decision on these matters, at this juncture.   See Mayfield v. Nicholson, 20 Vet. App.539, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error).  See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

II. Increased Ratings for Back and Knee Disabilities

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran.  38 C.F.R. § 4.3.  

A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  The Board acknowledges. however, that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007).  Each following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.  

The Board also notes that when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45 (2017); DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995).  The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion.  See Johnson v. Brown, 9 Vet. App. 7 (1996).

A. Spondyloarthropathy with IVDS

The current claim for an increased rating for spondyloarthropathy with IVDS was received by VA on April 10, 2012.  The rating for the Veteran's spondyloarthropathy with IVDS has been assigned under DC 5237, for lumbosacral strain.  However, the criteria for rating all musculoskeletal spine disabilities are set forth in the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), at 38 C.F.R. § 4.71a.  Under the General Rating Formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings apply: 

A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  Id.

A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted for ankylosis of the entire spine.  Id.

Note 2 provides that normal forward flexion of the thoracolumbar spine is to zero to 90 degrees.  Each range of motion measurement is to be rounded to the nearest five degrees.

Alternatively, the Formula for Rating IVDS provides that a 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months.  A maximum 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  Id. 

For purposes of rating IVDS under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician.  Id. at Note (1).

In this case, the Veteran reported during a June 2012 VA back examination that he did not experience any flare ups of his back disability.  The ranges of motion of the thoracolumbar spine were recorded as being flexion to 60 degrees with pain at 45 degrees, extension to 5 degrees with pain at that point, right and left lateral flexion both to 10 degrees with no objective evidence of painful motion, and right and left lateral rotation both to 15 degrees with no objective evidence of painful motion.  The ranges of motion remained the same following repetitive use testing and there was no additional limitation in the ranges of motion of the thoracolumbar spine following repetitive use testing.  There was functional loss/functional impairment of the thoracolumbar spine in terms of less movement than normal and pain on movement.  There was no localized tenderness or pain to palpation for joints or soft tissue of the thoracolumbar spine.  There was guarding and/or muscle spasm of the thoracolumbar spine, but it was not severe enough to result in an abnormal gait or spinal contour.  Muscle strength was normal, there was no muscle atrophy, deep tendon reflexes were all normal, sensation was normal, straight leg raising testing was negative bilaterally, the Veteran did not have any radicular pain or any other signs or symptoms due to radiculopathy, and he did not have any other neurologic abnormalities or findings related to his thoracolumbar spine disability.  Also, he did not have IVDS of the thoracolumbar spine, he did not use any assistive devices, there was no functional impairment of an extremity such that no effective function remained other than that which would have been equally well served by an amputation with prosthesis, there were no scars associated with the Veteran's back disability, and there were no other pertinent physical findings, complications, conditions, signs, or symptoms.  The Veteran was diagnosed as having spondyloarthropathy.  This disability impacted his ability to work in that it limited his ability to bend and stand due to pain.

The report of a January 2013 independent medical examination from J.W. Ellis, M.D. indicates that some of the records in the Veteran's claims file were reviewed and that he experienced constant low back pain, that he had to change positions approximately every 10 minutes to alleviate the back pain and numbness in his legs, that he experienced several near falls (without injury), and that he was always able to catch himself before falling to the ground.  He took medications for his pain, but they only resulted in mild improvement of his symptoms.  He was barely able to get out of bed on some mornings and he stopped working completely in January 2012.

Examination of the back revealed a large well healed scar in the right scapula area from a lipoma removal.  There was no trapezius muscle pain with range of motion and palpation, but there was bilateral lumbosacral pain with spasm (which was worse on the right and which followed down into the sacroiliac joint).  The pain was reproduced with straight leg raising.  The ranges of motion of the spine were recorded as being flexion to 45 degrees, extension to 10 degrees, right and left lateral flexion both to 10 degrees, and right and left lateral rotation both to 20 degrees.  There was decreased sensation to sharp pin prick on the left foot, but there was no decreased sensation anywhere else on the left leg.  The Veteran was slow to arise and he ambulated with a slow and steady gait.  Deep tendon reflexes were absent (0) in the ankles and somewhat diminished (1+) in the knees.  There was mild intensional ataxia with finger to nose testing and heel to shin testing.  Dr. Ellis also completed a "VA Joint Range of Motion Worksheet," on which he noted that the Veteran experienced 6 or more weeks of incapacitating episodes of IVDS during the previous 12 months, that there was severe impairment of the right sciatic nerve, and that there was mild impairment of the left sciatic nerve.  He did not provide any specific explanation or discussion concerning these notations. 

An April 2013 VA back examination report indicates that the Veteran reported that his spine would become "fused" and that he experienced flare ups of his back disability, during which it was impossible to move without pain and he was unable to work.  Examination revealed that the Veteran's posture and gait were normal. The ranges of motion of the thoracolumbar spine were recorded as being flexion to 40 degrees, extension to 15 degrees, right and left lateral flexion both to 20 degrees, and right and left lateral rotation both to 15 degrees.  There was no objective evidence of painful motion associated with any of the ranges of spinal motion, the ranges of motion all remained the same following repetitive use testing, there was no additional limitation in the ranges of spinal motion following repetitive use testing, and there was functional loss/functional impairment of the thoracolumbar spine only in terms of less movement than normal.  There was localized tenderness or pain to palpation for joints and/or soft tissues of the low back, but there was no guarding or muscle spasm of the thoracolumbar spine.  

Moreover, muscle strength was normal, there was no muscle atrophy, and bilateral sensation at the upper anterior thigh (L2), thigh/knee (L3/4), and lower leg/ankle (L4/L5/S1) was normal.  Deep tendon reflexes were absent (0) at the knees and ankles bilaterally, sensation was absent at the right foot/toes (L5), sensation was decreased at the left foot/toes, straight leg raising testing was positive bilaterally, there was moderate paresthesias and/or dysesthesias bilaterally, and there was moderate numbness of both lower extremities.  Overall, there was moderate sciatic radiculopathy of the lower extremities bilaterally.  The Veteran had IVDS of the thoracolumbar spine, but he had not experienced any incapacitating episodes of IVDS during the previous 12 months.  He regularly used a brace and occasionally used a cane for his knees, but there was no functional impairment of an extremity such that no effective function remained other than that which would have been equally well served by an amputation with prosthesis.  There were no scars related to the Veteran's back disability and there were no other pertinent physical findings, complications, conditions, signs, or symptoms.  A diagnosis of spondyloarthropathy with IVDS of the lower extremities was provided.  This disability impacted the Veteran's ability to work due to back pain.

Medical records dated from March 2014 to October 2015 document reports of worsening back pain and numbness/tingling/burning in the feet.  The pain occurred on a daily basis, was 6-9/10 in severity, was occasionally alleviated by steroid injections, and was located over the whole spine and para spinal areas (but was worse in the low back and radiated to the lower extremities).  Examinations revealed that the Veteran had an antalgic gait with limping on the left side, that his spinal range of motion was limited and painful, that there was positive straight leg raising on the left with radiculopathy, that left lower extremity sensation was impaired, and that there was tenderness to palpation and muscle spasms of the thoracolumbar spine.  A CT scan revealed multilevel degenerative disc changes with central canal stenosis at L1-2, L2-3, L3-4, and L4-5, grade 1 retrolisthesis of L4 and L5, and bilateral neuroforaminal narrowing at L1-2, L3-4, L4-5, and L5-S1.  Diagnoses of lumbar stenosis, lumbar spondylolisthesis, lumbar radiculopathy (worse in the left L4 and L5), thoracic or lumbosacral neuritis or radiculitis, spondylosis, displacement of the lumbar intervertebral disc without myelopathy, and possible lumbar ankylosing spondylitis were provided. 

The Veteran reported during a February 2016 VA back examination that he experienced low back pain which had worsened to the point that he was occasionally unable to walk far and received shots in the lower part of his back.  Flare ups of back symptoms occurred, during which he experienced leg and foot numbness and throbbing.  His back disability resulted in functional loss/functional impairment in that he was unable to perform certain physical activities (e.g., mowing the yard), bend, stoop, or stand or sit for prolonged periods.  

Examination revealed that the ranges of motion of thoracolumbar spine were flexion to 30 degrees, extension to 10 degrees, right and left lateral flexion both to 10 degrees, and right and left lateral rotation both to 15 degrees.  The range of motion itself contributed to functional loss in terms of pain, fatigue, and weakness, pain was noted at rest/non-movement, there was evidence of pain with weight bearing, and there was objective evidence of severe tenderness on palpation of the joint or associated soft tissue of the thoracolumbar spine.  The Veteran was unable to perform repetitive use testing due to instability of station.  He was not examined immediately after repetitive use over time or during a flare up, but the examination was medically consistent with his statements describing functional loss with repetitive use over time and during a flare up.  Pain, fatigue, weakness, and lack of endurance significantly limited functional ability with repeated use over time and during flare ups, but the examiner was unable to describe such functional loss in terms of range of motion because this would depend upon the type of activity performed and the severity of the pain experienced by the Veteran.

Furthermore, there was muscle spasm, localized tenderness, and guarding which resulted in an abnormal gait or abnormal spinal contour.  There was less movement than normal, weakened movement, instability of station, disturbance of locomotion, and interference with standing.  Muscle strength associated with bilateral knee extension was impaired (3-4/5), but muscle strength was otherwise normal (5/5), and there was no muscle atrophy.  Sensation was decreased/absent at the thighs/knees (L3/4), lower legs/ankles (L4/L5/S1), and feet/toes (L5), straight leg raising was positive bilaterally, and there was moderate to severe intermittent pain, paresthesias/dysesthesias, and numbness in the lower extremities bilaterally.  However, sensation at the upper anterior thighs (L2) was normal and deep tendon reflexes were normal (2+).  Overall, there was moderate left sciatic radiculopathy and severe right sciatic radiculopathy.  

Moreover, there was no ankylosis of the spine.  The Veteran had IVDS of the thoracolumbar spine and the examiner noted that the Veteran had experienced episodes of bed rest having a total duration of at least 6 weeks during the previous 12 months, but this finding was based only on the medical history as described by the Veteran and there was no documentation of any such impairment.  The Veteran regularly used a brace and cane for knee and back pain.  There was no functional impairment of an extremity such that no effective function remained other than that which would have been equally well served by an amputation with prosthesis and there were no other pertinent physical findings, complications, conditions, signs, or symptoms related to the Veteran's back disability.  He was diagnosed as having spondyloarthropathy with IVDS.  This disability impacted his ability to work in that it limited his ability to stand, lift, and walk.  He stopped working in 2012 and had been unemployed since that time due to chronic pain.

Considering the pertinent evidence in light of the applicable rating criteria and considerations delineated above,  the Board finds that a rating in excess of 40 percent for spondyloarthropathy with IVDS is not warranted at any time during the claim period.

The above evidence reflects that the Veteran's spondyloarthropathy with IVDS has been manifested by pain, tenderness, fatigue, weakness, lack of endurance, guarding, muscle spasms, an impaired gait, and painful and limited motion of the thoracolumbar spine.  The 40 percent rating currently assigned is the maximum schedular rating for limitation of motion of the thoracolumbar spine under the General Rating Formula.  Notably, a rating in excess of 40 percent for the thoracolumbar spine under the General Rating Formula requires a finding of ankylosis.  

Ankylosis is defined in general as "immobility and consolidation of a joint due to disease, injury, or surgical procedure."  Colayong v. West, 12 Vet App 524 (1999) (citing Dorland's Illustrated Medical Dictionary (28TH Ed. 1994) at 86).  The rating criteria provide that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, 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 cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5).  

Although the Veteran reported during the April 2013 VA back examination that his spine would become "fused," there is no evidence of his thoracolumbar spine being fixed in position or ankylosed during the claim period and he has retained the ability to move his spine (albeit a limited ability).  Also, the absence of ankylosis was specifically noted during the most recent VA back examination in February 2016.  Therefore, the rating considerations pertaining to functional loss due to pain and other factors (as delineated in 38 C.F.R. §§ 4.40 and 4.45, and DeLuca), provide no basis for any higher rating, and a rating in excess of 40 percent under the General Rating Formula is not warranted at any time pertinent to the current claim.

Moreover, the Board acknowledges that while there was no evidence of IVDS at the time of the June 2012 VA back examination, the Veteran has subsequently been diagnosed as having IVDS, Dr. Ellis noted on his January 2013 "VA Joint Range of Motion Worksheet" that the Veteran experienced 6 or more weeks of incapacitating episodes of IVDS during the previous 12 months, and the report of the February 2016 VA back examination indicates that the Veteran had experienced episodes of bed rest having a total duration of at least 6 weeks during the previous 12 months.  Nevertheless, Dr. Ellis did not review the Veteran's claims file and only reviewed some limited records, he did not provide any specific explanation or any detailed information pertaining to the nature of the Veteran's claimed "incapacitating episodes," and the examiner who conducted the February 2016 VA examination specified that the finding concerning the Veteran's bed rest was based only on the medical history as described by the Veteran and that there was no documentation of any such impairment.  

The Veteran is certainly competent to report the need for and duration of bed rest. Nevertheless, his reported bed rest does not actually constitute physician prescribed bed rest, there is no clinical evidence of any physician prescribed bed rest in his treatment records, and the Veteran has not specifically claimed that he has been prescribed bed rest by any physician.  Hence, there is no adequate evidence of any "incapacitating episodes" as defined by VA and a higher rating under the Formula for Rating IVDS based on incapacitating episodes of IVDS is not warranted at any time during the claim period.  38 C.F.R. § 4.71a, DC 5243, Note (1) (2017).

With respect to neurological manifestations of spine disability pursuant to Note (1) of the General Rating Formula, the Board finds that this provision provides no basis for assignment of any higher, or separate, compensable rating(s) in addition to those already assigned. 

In this regard, the Board notes that separate disability ratings have been assigned for radiculopathy of the right and left lower extremities, both associated with the service-connected back disability (see October 2013 and April 2016 rating decisions).  Therefore, the neurological symptoms in the lower extremities noted during the claim period are already contemplated by the ratings assigned for those disabilities, and the propriety of these ratings is not currently before the Board for consideration.

B. Chondromalacia and Arthritis of the Right Knee

The current claim for an increased rating for chondromalacia and arthritis of the right knee was received by VA on April 10, 2012.  The rating for the Veteran's chondromalacia and arthritis of the right knee has been assigned under 38 C.F.R. § 4.71a, DCs 5003-5262.  Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned.  38 C.F.R. § 4.27 (2017).  Here, the use of DCs 5003-5262 reflects that the Veteran's disability is partially described as degenerative arthritis and that the rating assigned is based on limitation of knee extension under DC 5261.

Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved.  If the limitation of motion is noncompensable, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  In the absence of limitation of motion, a 20 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations.  A 10 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups.  38 C.F.R. § 4.71a, DC 5003.

For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees.  38 C.F.R. § 4.71, Plate II (2017).
VA's General Counsel has held that separate ratings can be provided for limitation of knee extension and flexion.  VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990  (2004). 

Limitation of knee flexion is rated as follows: a noncompensable rating is warranted when it is limited to 60 degrees; a 10 percent rating is warranted when it is limited to 45 degrees; a 20 percent rating is warranted when it is limited to 30 degrees; and a 30 percent rating is warranted when it is limited to 15 degrees.  38 C.F.R. § 4.71a , DC 5260.

Limitation of knee extension is rated as follows: a noncompensable rating is warranted when it is limited to 5 degrees; a 10 percent rating is warranted when it is limited to 10 degrees; a 20 percent rating is warranted when it is limited to 15 degrees; a 30 percent rating is warranted when it is limited to 20 degrees; a 40 percent rating is warranted when it is limited to 30 degrees; and a 50 percent rating is warranted when it is limited to 45 degrees.  38 C.F.R. § 4.71a , DC 5261.

In this case, the Veteran reported during a June 2012 VA knee examination that he experienced flare ups of right knee symptoms, during which he was unable to bend the knee, experienced soreness, and used crutches.  The ranges of right knee motion were recorded as being flexion to 90 degrees with pain at 60 degrees and extension to 0 degrees with no objective evidence of painful motion.  The ranges of left knee motion were recorded as being flexion to 100 degrees with pain at 85 degrees and extension to 0 degrees with no objective evidence of painful motion.  The ranges of right knee motion remained the same following repetitive use testing and there was no additional limitation in the range of motion of the knee and lower leg following repetitive use testing.  There was functional loss/functional impairment of the right knee and lower leg in terms of less movement than normal, pain on movement, and swelling, and there was tenderness or pain to palpation for joint line or soft tissues of the right knee.  Muscle strength associated with knee flexion and extension was normal (5/5), joint stability testing was all normal, and there was no evidence or history of any recurrent patellar subluxation/dislocation.  Also, the Veteran did not have any shin splints (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment.
Moreover, the Veteran did have a meniscal dislocation and a meniscal tear and the meniscus condition resulted in frequent episodes of joint pain and joint effusion.  A meniscectomy had been performed on an unknown date and the residuals were unknown.  He had not undergone any total knee joint replacement or any other arthroscopic knee surgery.  There were scars associated with the Veteran's right knee disability, but none of the scars were painful or unstable and the total area of all related scars was not greater than 39 square centimeters.  There were no other pertinent physical findings, complications, conditions, signs, or symptoms.  The Veteran did not use any assistive devices and there was no functional impairment of an extremity such that no effective function remained other than that which would have been equally well served by an amputation with prosthesis.  The Veteran was diagnosed as having chondromalacia and arthritis of the right knee and internal derangement, status post arthroscopic debridement of the right knee.  This disability impacted his ability to work in that it limited his ability to walk and kneel.

The January 2013 independent medical examination report from Dr. Ellis reflects that the Veteran reported that he experienced worsening right knee pain.  Dr. Ellis noted that inflammation in both of the Veteran's knees caused traumatic arthritis to develop, which "led to the instability and subsequent surgeries."  He also listed service-connected knee disabilities and included moderate instability of the right knee, but he did not provide any further explanation or clinical findings concerning knee instability.  Examination revealed that there was right knee crepitus, that right knee flexion was to 100 degrees, and that right knee extension was to 22 degrees.

The report of a VA knee examination dated on April 4, 2013 indicates that the Veteran experienced flare ups of knee symptoms, which he described as being unable to walk without crutches and/or a back brace.  Examination revealed that right knee flexion was to 65 degrees with pain at that point and that extension was to 0 degrees with no objective evidence of painful motion.  Left knee flexion was to 115 degrees and extension was to 0 degrees, with no objective evidence of painful motion.  The ranges of right knee motion remained the same following repetitive use testing and there was no additional limitation in the range of motion of the right knee and lower leg following repetitive use testing.  There was functional loss/functional impairment of the right knee and lower leg in terms of less movement than normal and pain on movement.  Muscle strength associated with knee flexion and extension was normal (5/5), joint stability testing was all normal, and there was no evidence or history of any recurrent patellar subluxation or dislocation.  Also, the Veteran did not have any shin splints (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment.

Furthermore, the Veteran did have a meniscal tear and the meniscus condition resulted in frequent episodes of joint pain.  A meniscectomy had been performed in 1978 and the residual was pain.  He had not undergone any total knee joint replacement, but an arthroscopic knee surgery was performed on the right knee in 1982, during which "bad areas" and loose cartilage were removed.  There were scars associated with the Veteran's right knee disability, but none of the scars were painful or unstable and the total area of all related scars was not greater than 39 square centimeters.  There were no other pertinent physical findings, complications, conditions, signs, or symptoms.  The Veteran regularly used a brace and occasionally used a cane, but there was no functional impairment of an extremity such that no effective function remained other than that which would have been equally well served by an amputation with prosthesis.  Diagnoses of chondromalacia and arthritis of the right knee and right knee arthroscopic surgery were provided.  This disability impacted the Veteran's ability to work due to knee pain and the fact that he was unable to stand for prolonged periods, walk for prolonged distances, bend, or lift.  Also, the examiner who conducted the April 2013 examination explained that pain could significantly limit right knee motion during flare ups, with an estimated additional 50 percent loss of remaining range of motion.

Considering the pertinent evidence in light of the applicable rating criteria and considerations delineated above, the Board finds that a 50 percent rating for limitation of knee extension is warranted for the entire period from April 10, 2012 through February 22, 2016.

Pertinent evidence reflects that the Veteran's chondromalacia and arthritis of the right knee was manifested by knee pain, soreness, tenderness, effusion, crepitus, and painful and limited knee motion.  Knee flexion was limited to, at most, 65 degrees and knee extension was limited to, at most, 22 degrees.  These ranges of motion, by themselves and without consideration of potential functional impairment, do not meet or approximate the range of motion criteria for a compensable rating under the diagnostic code pertaining to limitation of knee flexion (DC 5260) or for a rating in excess of 30 percent under the diagnostic code pertaining to limitation of knee extension (DC 5261).

However, as for functional impairment, the Veteran reported during the June 2012 VA examination that he experienced flare ups of right knee symptoms, during which he was unable to bend the knee, experienced soreness, and used crutches. The examiner noted that there was functional loss/functional impairment of the right knee and lower leg in terms of less movement than normal, swelling, and pain on movement (pain began at 60 degrees of flexion and there was no objective evidence of painful knee extension), but the examiner did not comment on the extent of any functional impairment during flare ups.  During the April 2013 VA examination, the Veteran reported that he experienced flare ups of knee symptoms, which he described as being unable to walk without crutches and/or a back brace.  The examiner indicated that there was functional loss/functional impairment of the right knee and lower leg in terms of less movement than normal and pain on movement (pain began at 65 degrees of flexion and there was no objective evidence of painful knee extension).  Also, the examiner specifically explained that pain could significantly limit right knee motion during flare ups, with an estimated additional 50 percent loss of remaining range of motion.

The Veteran is competent to report the symptoms of his right knee disability and the extent of his impairment during flare ups of knee symptoms.  Although there is no contemporaneous medical evidence of knee symptoms during flare ups, there is no affirmative evidence to explicitly contradict the Veteran's reports and these reports are not inconsistent with the evidence of record.  Thus, the Board finds that the Veteran's reports of functional impairment due to flare ups of knee symptoms are credible.

In light of the fact that the Veteran reported that he was unable to bend his knee or walk without crutches during flare ups of knee symptoms, the opinion of the examiner who conducted the April 2013 VA examination as to the extent of functional impairment during flare ups, and the fact that the examiner who conducted the June 2012 VA examination did not provide any such opinion, and resolving reasonable doubt in the Veteran's favor, the Board finds that the symptoms of the service-connected right knee disability more closely approximated the criteria for a 50 percent rating for limitation of knee extension under DC 5261 (i.e., limitation of extension to 45 degrees) during the entire period from April 10, 2012 through February 22, 2016.  This is the maximum rating under DC 5261.  See 38 C.F.R. § 4.71a, DC 5261.

As for a separate rating for limitation of knee flexion under DC 5260, flexion was to 90 degrees during the June 2012 VA examination and to 100 degrees during the January 2013 examination with Dr. Ellis.  Hence, flexion would be limited to between approximately 45 and 50 degrees due to additional functional impairment during flare ups, as described above.  This most closely approximates the criteria for a 10 percent rating under DC 5260.  During the April 2013 VA examination, flexion was to 65 degrees.  Therefore, flexion would be limited to approximately 33 degrees during flare ups at the time of that examination.  This more closely approximates the criteria for a 20 percent rating under DC 5260.  It is unclear when the Veteran's more severe right knee symptomatology began following the January 2013 examination with Dr. Ellis, but the earliest that it is factually ascertainable that the Veteran's disability warranted a 20 percent rating due to functional impairment during flare ups is April 4, 2013 (the date of the April 2013 VA examination).  In sum, the Board finds that a separate 10 percent rating, from April 10, 2012 through April 3, 2013, and a separate 20 percent rating, from April 4, 2013 through February 22, 2016, for limitation of knee flexion under DC 5260 is warranted.

However, no separate and/or higher rating(s) is/are assignable at any time during the claim period from prior to February 23, 2016.  The Board acknowledges that Dr. Ellis noted during his January 2013 examination that inflammation in both of the Veteran's knees caused traumatic arthritis to develop, which "led to the instability and subsequent surgeries."  Also, he included moderate instability of the right knee in his list of service-connected knee disabilities.  Nevertheless, Dr. Ellis did not provide any specific explanation for his notation of instability and no clinical findings indicative of instability were provided in his examination report.  Moreover, joint stability testing was all normal during both the June 2012 and April 2013 VA examinations and there was otherwise no evidence or history of any recurrent patellar subluxation or dislocation of the right knee during these examinations.  Thus, the Board finds that the preponderance of the evidence is against assignment of a separate rating for recurrent subluxation or lateral instability of the knee under DC 5257 at any time during the claim period prior to February 23, 2016.

Also, there was no showing of any knee ankylosis, tibia or fibula impairment, or genu recurvatum at any time during the claim period prior to February 23, 2016.  The June 2012 and April 2013 VA examination reports noted that the Veteran did have a meniscal dislocation and a meniscal tear, that the meniscus condition resulted in frequent episodes of joint pain and joint effusion, and that there was residual pain from a meniscectomy.  However, there is no evidence of any frequent episodes of locking at any time prior to February 23, 2016.  Furthermore, any pain associated with cartilage removal is already compensated under DCs 5260 and 5261 because the ratings assigned for limitation of knee motion contemplate symptoms such as pain.  See 38 C.F.R. §§ 4.40, 4.45, 4.59.  The evaluation of the same disability or manifestation under different diagnoses constitutes pyramiding and must be avoided.  See 38 C.F.R. § 4.14 (2017).  Hence, no separate and/or higher rating(s) is/are warranted on the basis of any such impairment(s) at any time during the claim period prior to February 23, 2016.  See 38 C.F.R. § 4.71a, DCs 5256, 5258-5259, 5262-5263.

C. Additional Considerations

The Board further notes that neither the service-connected back disability nor the service-connected right knee disability has been shown to involve any other factor(s) warranting evaluation under any other provision(s) of VA's rating schedule at any pertinent point.  
As a final point, the Board notes that, in conjunction with the claims for higher ratings for spondyloarthropathy with IVDS and chondromalacia and arthritis of the right knee, other than the matter of the Veteran's entitlement to a TDIU (which is addressed in the remand below) neither the Veteran nor his attorney has raised any other related issues, nor have any other such issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

III. Bilateral Hearing Loss Extra-Schedular Rating

There is a three-step analysis for determining whether an extra-schedular rating is appropriate.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom.  Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). 

The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  See also 38 C.F.R. § 3.321 (b)(1).  Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required.  See VAOGCPREC 6-96 (Aug. 16, 1996); Thun, supra. 

However, if the schedular criteria are found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms.  If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of Compensation Service to determine whether an extra-schedular rating is warranted.

When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.  In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail.  The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim."  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert.

In the present case, the Veteran reported during VA audiological examinations dated in June 2012 and March 2013 and during an August 2015 VA audiology consultation that as a result of his hearing loss, he experienced difficulty hearing conversational speech and he could not always hear safety and environmental sounds (e.g., alarms, telephone, bells, etc.).  He also experienced constant tinnitus which resulted in impaired concentration (e.g., while reading) and frustration.  He did not have any recent history of otalgia, otorrhea, ear infections, ear surgery, aural fullness, vertigo, or significant change in hearing sensitivity.  Examinations revealed that the auricles and external ears were within normal limits bilaterally and that the ear canals were clear bilaterally.  Audiometric and speech discrimination testing was conducted and revealed an asymmetrical hearing loss of 20 decibels or greater (by air conduction).  The Veteran was diagnosed as having bilateral sensorineural hearing loss and tinnitus.

The audiologist who conducted the March 2013 examination explained that the Veteran would have numerous issues due to hearing loss that would affect his employability.  It is difficult for a hearing impaired person to excel in a job interview because communication for employment is crucial.  The Veteran reported that he mostly worked in construction and that he experienced difficulty understanding people with the background noises associated with the construction, that people had to holler at him when they were speaking, and that it was frustrating for him and others.  He had to ask others to repeat themselves in order to compensate for the hearing loss, he occasionally had to stop what he was doing and move closer to the person talking in order to hear what was being said, and he sometimes had to turn off machinery in order to hear better.  These problems occasionally caused conflicts on the job and required the Veteran to use coping and compensation skills which resulted in fatigue, tension, stress, and depression.  He was able to perform his job, but the hearing loss made him feel inadequate, belittled, and frustrated.  Also, he was better able to understand others if he could see their face and read their lips.  Overall, he felt as if he had a lot of barriers to overcome which stood in the way of his productivity, performance, and career success.  A hearing aid, along with other aids, would possibly be beneficial to help him overcome the barriers that the hearing loss posed in the workplace.

In this case, with respect to the first prong of Thun, considering the pertinent evidence in light of the applicable criteria and considerations delineated above, the Board finds that the evidence does not establish such an exceptional disability picture as to render the schedular criteria for evaluating hearing loss inadequate.  The schedular rating criteria for rating hearing loss provide for disability ratings based on testing during audiological evaluations, to include speech discrimination and pure tone testing.  Here, all hearing impairment associated with the Veteran's hearing loss is contemplated by the schedular rating criteria.  

The Board points out that the applicable schedular rating criteria (38 C.F.R. §§ 4.85, 4.86) specifically provide for ratings based on all levels of hearing loss in various contexts, as measured by both audiometric testing and speech recognition testing.  The ability of the Veteran to hear sounds and voices is measured and rated by an audiometric test, as this test measures different frequencies and captures high frequency hearing loss from sources including voices, music, sirens, and certain high pitched sounds.  The ability of the Veteran to understand people is rated by a speech recognition test, as this test measures conversation comprehension, words, and missed conversations.  The schedular rating criteria specifically provide for ratings based on all levels of hearing loss, including exceptional hearing patterns, as measured by both audiometric testing and speech recognition testing.  See Doucette, 28 Vet. App. at 366 (holding "that the rating criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech").

The decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIa of the rating schedule were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability.  The regulatory history of 38 C.F.R. §§ 4.85  and 4.86 includes revisions, effective June 10, 1999.  See 64 Fed. Reg. 25,202 (May 11, 1999).  In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids.  VHA had found through clinical studies of veterans with hearing loss that, when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment.  The decibel threshold requirements for application of Table VIa were based on the findings and recommendations of VHA. The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting.  59 Fed. Reg. 17,295 (Apr. 12, 1994).

The inherent purpose of the schedular rating criteria is to determine, as far as practicable, the severity of functional impact resulting from a service-connected disability, including any resultant occupational and social impairment, and therefore contemplates the Veteran's difficulties with functioning in a social environment due to hearing loss.  Accordingly, the Board finds that the Veteran's reported hearing related difficulties are factors contemplated in the regulations and schedular rating criteria.  See also Doucette, 28 Vet. App. at 366 (holding that "the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are precisely the effects that VA's audiometric tests are designed to measure . . . an inability to hear or understand speech or to hear other sounds in various contexts . . . are contemplated by the schedular rating criteria").

The Veteran has also experienced tinnitus during the claim period and has reported that the occupational impairments caused by his hearing loss have resulted in fatigue, tension, stress, and depression.  With respect to functional impairment due to tinnitus, this symptom is not contemplated in the rating schedule to be a symptom associated with hearing loss, but is specifically indicated by the rating schedule to be a separately ratable disability under DC 6260 and is distinct from hearing impairment (DC 6100).  In this case, the Veteran has already been awarded service connection for tinnitus and is in receipt of a separate disability rating for that disability.

As for the Veteran's reported symptoms of fatigue, tension, stress, and depression, these symptoms are also not contemplated in the rating schedule to be a symptom associated with hearing loss.  Rather, they are identified in the rating schedule as being symptoms of a mental disorder, which is a separately compensable disability distinct from hearing impairment (DC 6100) and would be rated in accordance with the schedular criteria for mental disorders under 38 C.F.R. § 4.130 (2017).  The Veteran has already been awarded service connection for severe depression with anxiety and is in receipt of a separate disability rating for that disability.

In sum, the criteria for rating hearing loss under 38 C.F.R. §§ 4.85 and 4.86 encompass the effects of the Veteran's hearing loss, to include those described by the Veteran.  Therefore, the rating assigned for the service-connected hearing loss since the April 10, 2012 effective date of service connection contemplates all of the Veteran's reported and observed symptoms during that period, as set forth above, and the Veteran has not demonstrated any symptomatology associated with his hearing loss that falls outside the scope of the applicable criteria.

The Board further notes that, pursuant to Johnson v. McDonald, 762 F.3d 1362   (Fed. Cir. 2014), a veteran may be awarded an extra-schedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where evaluation of the individual conditions fails to capture all the symptoms associated with service-connected disabilities experienced.  Here, however, the Veteran's hearing loss is appropriately rated as a single disability.  The Veteran has not asserted, and the evidence of record does not suggest, 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.  See Yancy v. McDonald, 27 Vet. App. 484, 495 (Fed. Cir. 2016).  Accordingly, this is not an exceptional circumstance for extra-schedular consideration within the meaning of Johnson.

Under these circumstances, the Board concludes that the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321 (b)(1) is not met, that the record does not establish that the Veteran's bilateral hearing loss is so exceptional or unusual as to warrant referral for extraschedular consideration, and that referral of the claim for extra-schedular consideration is not warranted.  See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

For all the foregoing reasons, the Board finds that the criteria for an initial rating in excess of 10 percent for bilateral hearing loss, on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b)(1), have not been met.  As such, the claim must be denied.  In reaching the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, given the above-noted determinations with respect to extra-schedular consideration, that doctrine is not applicable.  See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.


ORDER

A rating in excess of 40 percent for spondyloarthropathy with IVDS is denied.

A 10 percent rating, from April 10, 2012 through April 3, 2013, and a 20 percent rating, from April 4, 2013 through February 22, 2016, for chondromalacia and arthritis of the right knee, on the basis of limitation of knee flexion, is granted, subject to the legal authority governing the payment of VA compensation.

A 50 percent rating, from April 10, 2012 through February 22, 2016, for chondromalacia and arthritis of the right knee, on the basis of limitation of knee extension, is granted, subject to the legal authority governing the payment of VA compensation.
An initial rating in excess of 10 percent for bilateral hearing loss on an extra-schedular basis, pursuant to 38 C.F.R. § 3.321 (b)(1), is denied.


REMAND

The Board's review of the claims file reveals that further action on the remaining claims on appeal, is warranted. 

VA is required to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of disability, the record indicates that the disability or symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim.  38 U.S.C. § 5103A (d) (2012); 38 C.F.R. § 3.159 (2017); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The threshold for finding a link between current disability and service is low.  Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83.  

In this case, a November 2014 arthritis clinic note reflects that examination of the Veteran's skin revealed dermatoheliosis of the face and anterior chest.  The Veteran reported on an October 1976 report of medical history form completed for purposes of separation from service that he experienced a history of skin diseases.  He contends that he was treated for basal cell carcinoma in service and that he has been treated for recurrent skin cancers in the years since service.  In sum, there is competent evidence of a current skin disability and evidence of skin problems during service.  Also, there is competent evidence of a continuity of skin symptomatology in the years since service, which suggests that the claimed skin disability may have been incurred in service.  Therefore, VA's duty to obtain an examination is triggered.  See 38 U.S.C. § 5103A (d); McLendon, supra; 38 C.F.R. § 3.159.  Such an examination is needed to obtain a medical opinion as to the nature and etiology of any current skin disability.

As for the claim for an increased rating for the service-connected right knee disability, the Veteran was afforded a VA knee examination in February 2016 to obtain information as to the severity of his knee disability.  Subsequent to this examination, the Court held that in order to adequately assess functional impairment of a joint, the joint involved should be tested for pain on both active and passive motion, in weight bearing and non weight bearing and, if possible, with the range of the opposite undamaged joint.  Correia v. McDonald, 28 Vet. App. 158 (2016).  The report of the February 2016 examination reflects that the ranges of active motion of the left and right knees were reported, and the examiner noted that there was evidence of pain with weight bearing.  However, the Board cannot discern from the examination report whether the Veteran's right knee was tested for pain in non-weight-bearing.  Also, the ranges of passive motion of the right knee were not provided.  See 38 C.F.R. § 4.59; Correia, 28 Vet. App. at 168-170. 

Given the lack of all necessary findings, as identified above, the Board finds that a new examination to obtain appropriate testing results and clinical findings-based on full consideration of the Veteran's documented medical history and assertions, and which includes more detailed range of motion testing information, as referenced above-is needed to assess the severity of the service-connected right knee disability. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017).

Hence, the AOJ should arrange for the Veteran to undergo VA skin and knee examinations by appropriate medical professionals.  The Veteran is hereby notified that failure to report to a scheduled examination without good cause, may result in denial of his claim(s).  See 38 C.F.R. § 3.655 (2017).  Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member.  If the Veteran fails to report to the scheduled examination(s), the AOJ should obtain and associate with the claims file copy(ies) of any correspondence referencing the date and time of the examination(s)-preferably, any notice(s) of examination-sent to him by the pertinent medical facility.

The Board points out that, as additional information will be obtained addressing the severity of the service-connected right knee instability during the VA knee examination, Board action on this claim, at this juncture, would be premature; hence, this matter is being remanded, as well.

With respect to the claim for a TDIU, the Board finds that the AOJ should again adjudicate the TDIU claim after implementing the Board's award of higher ratings for the service-connected right knee disability during the period from April 10, 2012 through February 22, 2016.  Also, the Board points out that, as any decision with respect to the claim for service connection for a skin disability and with respect to the appeal for an earlier effective date for the award of service connection for severe depression with anxiety may affect the claim for a TDIU, the claim for a TDIU is inextricably intertwined with the earlier effective date and service connection matters.  See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated).  As such, on remand, the AOJ will have an opportunity to consider, in the first instance, the evidence pertinent to the claim for a TDIU added to the claims file since the last adjudication (notwithstanding any waiver), as well as to consider whether the award of a total (100 percent rating) and special monthly compensation (SMC) renders moot the question of the Veteran's entitlement to a TDIU during any period under consideration (currently, from February 18, 2016).

Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate notification and development action to obtain and associate with the claims file all outstanding, pertinent records.

As for VA records, the claims file includes records of the Veteran's treatment from the VA Medical Center (VAMC) in Oklahoma City, Oklahoma (dated to August 2015).  Hence, there may be additional VA treatment records that have not yet been obtained.  The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file.  See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  Therefore, the AOJ should obtain from the above-noted facility all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran, following the current procedures prescribed in 38 C.F.R. § 3.159 (c) as regards requests for records from Federal facilities.

The AOJ should also give the Veteran another opportunity to provide information and/or evidence pertinent to one or more remaining claims(s) on appeal (particularly as regards any private (non-VA) treatment), explaining that he has a full one-year period for response.  See 38 U.S.C. § 5103(b) (2012); but see 38 U.S.C. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period).  

Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2017).

The actions identified herein are consistent with the duties imposed by the VCAA.  See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159.  However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations.  Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the remaining matters on appeal.  

Accordingly, these matters are hereby REMANDED for the following action:

1.  Obtain all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran, to particularly include all records from the VAMC in Oklahoma City, Oklahoma (dated since August 2015).  Follow the procedures set forth in 38 C.F.R. § 3.159 (c) (2017) with respect to requesting records from Federal facilities.  All records/responses received should be associated with the file.

2.  Furnish to the Veteran and his attorney a letter requesting that the Veteran provide information and, if necessary, authorization, to obtain any additional evidence pertinent to one or more remaining claim(s) on appeal that is not currently of record.  Specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent, private (non-VA) medical records.
Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the matters within the one-year period).

3.  If the Veteran responds, obtain all identified records, following the procedures set forth in 38 C.F.R. § 3.159.  All records and responses received should be associated with the file.  If any records sought are not obtained, notify the Veteran and his attorney of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken.

4.  After all records and/or responses received from each contacted entity have been associated with the file, arrange for the Veteran to undergo a VA dermatology examination, by an appropriate physician, to obtain information as to the nature and etiology of any current skin disability.

The contents of the entire electronic claims file (in VBMS and Virtual VA), to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should include discussion of the Veteran's documented medical history and assertions.  All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail.

Based on a review of all pertinent lay and medical evidence, the physician should clearly identify any skin disability(ies) currently present, or present at any point since approximately January 2013 (even if now asymptomatic or resolved). 

Then, with respect to each diagnosed disability, the physician should provide an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (a 50 percent or greater probability) that the disability (a) had its onset during service; (b) is related to the Veteran's reported skin problems in service; or (c) is otherwise the result of in-service injury or disease.

In addressing the above, the physician must consider and discuss all relevant medical and other objective evidence of record and all lay assertions-to include the Veteran's report of skin diseases on an October 1976 report of medical history form completed for purposes of separation from service and his competent assertions as to experiencing skin symptoms in the years since service.

The absence of clinical evidence of diagnosis of and/or treatment for skin problems during service should not, alone, serve as the sole basis for a negative opinion.

In this regard, the physician is advised that the Veteran is competent to report his symptoms and history, and that lay assertions in this regard must be considered in formulating the requested opinions.  If lay assertions in any regard are discounted, the physician should clearly so state, and explain why. 

All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached must be provided.

5.  After all records and/or responses received from each contacted entity have been associated with the file, arrange for the Veteran to undergo a VA examination, by an appropriate physician, for evaluation of his service-connected right knee disability.

The contents of the entire, electronic claims file (in VBMS and Virtual VA), to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should include discussion of the Veteran's documented medical history and assertions.  All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail.

The examiner should conduct range of motion testing (expressed in degrees) of the right knee on both active motion and passive motion and in both weight-bearing and non-weight-bearing (as appropriate).  The same range of motion testing should also be accomplished for the left knee (for comparison purposes).  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly so state and explain why.

The examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the right knee.  If pain on motion is observed, the examiner should indicate the point at which pain begins. 

In addition, based on examination results and the Veteran's documented history and assertions, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss of the right knee due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion.

The examiner should also indicate whether there is any lateral instability and/or recurrent subluxation in the right knee.  If instability is present, the examiner should, based on the examination results and the Veteran's documented medical history and assertions, assess whether such instability is slight, moderate, or severe.

The examiner should also report if there is any ankylosis of the right knee and, if so, whether it is favorable or unfavorable and the angle at which the knee is held.

Additionally, the examiner should identify and comment on the existence or extent of, as appropriate, any tibia or fibula impairment.

All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided.

6.  If the Veteran fails to report to any scheduled examination(s), obtain and associate with the claims file copy(ies) of any correspondence referencing the date(s) and time(s) of the examination(s)-preferably, any notice(s) of examination(s)-sent to him by the pertinent medical facility.

7.  To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND.  If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

8.  After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the remaining matters on appeal.

If the Veteran fails, without good cause, to report to the scheduled examination for his service-connected right knee disability, in adjudicating the increased rating claim, apply the provisions of 38 C.F.R. § 3.655 (b), as appropriate.

Otherwise, adjudicate the claims in light of all pertinent evidence (to particularly include that added to the VBMS and/or Virtual VA file(s) since the last adjudication of the claims in March 2016), and all legal authority (to include consideration of whether staged rating of the right knee disability is appropriate).

9.  If any benefit(s) sought on appeal remain(s) denied, furnish to the Veteran and his attorney an SSOC that includes clear reasons and bases for all determinations, and afford them an appropriate time period for response.

The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether any benefit requested should be granted or denied.  The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369  (1999).

This REMAND must be afforded expeditious treatment.  The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate 
action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).




______________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs