Citation Nr: 1803934 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 14-04 698 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to an effective date prior to September 9, 2010, for the award of service connection for degenerative disc disease of the cervical spine. 4. Entitlement to an initial rating in excess of 10 percent prior to December 28, 2015, and a rating in excess of 20 percent thereafter, for degenerative disc disease of the cervical spine. 5. Entitlement to a total rating based on individual unemployability (TDIU) prior to January 8, 2016. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel INTRODUCTION The appellant served on active duty in the Air Force from December 1975 to September 1979. He subsequently served in the Tennessee Air Force National Guard, including periods of active duty as follows: September 18, 2001, to September 30, 2001; October 19, 2001, to November 3, 2001; October 1, 2002, to October 19, 2002; March 17, 2003, to September 15, 2003; August 3, 2004, to September 7, 2004; April 25, 2005, to June 9, 2005; January 17, 2006, to April 1, 2006; October 1, 2006, to November 3, 2006; January 15, 2008, to February 4, 2008; August 26, 2008, to September 18, 2008; October 28, 2008, to December 8, 2008; December 29, 2008, to June 2, 2009; November 13, 2009, to November 24, 2009; and July 24, 2010, to September 8, 2010. This matter comes before the Board of Veterans' Appeals (Board) from December 2011 and February 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. Timely Notices of Disagreement (NOD) were received in June 2012. A Statement of the Case (SOC) was issued in December 2013. A timely substantive appeal was received in February 2014. The Board notes that in the February 2012 rating decision on appeal, the RO granted service connection for the Veteran's cervical spine disability and assigned an initial 10 percent rating. Before the appeal was certified to the Board, in a December 2016 rating decision, the RO increased the rating for the appellant's cervical spine disability to 20 percent, effective December 28, 2015. Although a higher rating was granted, the issue remains in appellate status, as the maximum schedular rating was not assigned from the award of service connection. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Also in the December 2016 rating decision, the RO granted service connection for left and right upper extremity radiculopathy and assigned initial, separate 20 percent ratings for each extremity, effective September 14, 2010. In a May 2017 rating decision, the RO increased the rating for the appellant's radiculopathy of the left upper extremity to 30 percent effective February 2, 2017. The appellant has not initiated an appeal with the downstream elements of initial rating or effective date assigned for those disabilities; thus, those matters are not currently before the Board. The issues of entitlement to service connection for bilateral hearing loss and entitlement to TDIU prior to January 8, 2016, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The evidence is in relative equipoise as to whether the appellant's current right knee disability is causally related to his active service. 2. The appellant was discharged from active duty on September 8, 2010. 3. The appellant filed a claim of service connection for cervical spine degenerative disc disease, received on April 18, 2011. 4. The RO granted service connection for cervical spine degenerative disc disease in February 2012, effective September 9, 2010. 5. Prior to December 28, 2015, the appellant's cervical spine degenerative disc disease was manifested by forward flexion limited to no more than 40 degrees and combined range of motion of not less than 290 degrees. There was no ankylosis, nor were there any incapacitating episodes requiring physician-prescribed bedrest with a total duration of at least two weeks in any 12-month period. Beginning December 28, 2015, the appellant's cervical spine degenerative disease was manifested by forward flexion limited to no more than 30 degrees. There was no ankylosis, nor were there any incapacitating episodes requiring physician-prescribed bedrest with a total duration of at least four weeks in any 12-month period. CONCLUSIONS OF LAW 1. Affording the appellant the benefit of the doubt, a right knee disability was caused by active service. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. § 3.303 (2017). 2. The criteria for an effective date earlier than September 9, 2010, for the grant of service connection for cervical spine degenerative disc disease have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.400, 20.1100 (2017). 3. The criteria for an initial rating in excess of 10 percent prior to December 28, 2015, and in excess of 20 percent thereafter for cervical spine degenerative disc disease have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The appellant has raised no issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Applicable Law A. Standard of Proof The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). "It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran." See Gilbert, 1 Vet. App. at 54. B. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the "active military, naval, or air service." 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). C. Effective Dates Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of an application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The effective date of an award of disability compensation based on an award of service connection is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, the date of receipt of the claim or date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(b)(2). D. Increased Evaluations Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if that disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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). Where a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous. . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. i. Cervical Spine Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the action. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling, and pain on movement. 38 C.F.R. § 4.45. The U.S. Court of Appeals for Veterans Claims (Court) has held that functional loss, supported by adequate pathology and evidenced by visible behavior of the veteran undertaking the motion, is recognized as resulting in disability. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45. The criteria for evaluating disabilities of the spine are contained in a General Rating Formula for Diseases and Injuries of the Spine. The formula provides that with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings are assigned: A 20 percent rating is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A maximum 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71(a). Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V) For VA compensation purposes, normal forward flexion of the cervical 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. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. Note (5): 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. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242. In addition to the General Rating Formula for Diseases and Injuries of the Spine, intervertebral disc syndrome may be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that when intervertebral disc syndrome is productive of incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past twelve months, a 20 percent rating is assigned. When incapacitating episodes have a total duration of at least four weeks but less than six weeks during the past twelve months, a 40 percent rating is assigned. When incapacitating episodes have a total duration of at least six weeks during the past twelve months, a maximum 60 percent rating is assigned. Note (1) following 38 C.F.R. § 4.71a, Diagnostic Code 5243 provides that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. III. Analysis A. Entitlement to service connection for a right knee disability. The appellant seeks service connection for a right knee disability. He contends that he first developed chronic right knee pain during a period of active duty and that his right knee symptoms have persisted since that time. In pertinent part, the appellant's service treatment records show that on November 16, 2008, during a period of active duty, the appellant sought treatment for right knee pain which had been present for two days. He had noticed the pain when kneeling on the ground while working on an airplane. The diagnosis was joint pain. On November 26, 2008, while still on active duty, the appellant again sought treatment for right knee pain which he indicated had been present for two weeks. Such pain was only present upon kneeling. He denied a knee injury. He was diagnosed with tendonitis. On December 22, 2008, the appellant was seen in a private orthopedic clinic. It was noted that he had been referred by the McGhee-Tyson Airbase Clinic. The appellant reported right knee pain which began while lifting a large bar that assists in towing aircraft. It bothers him to get down on his knees or bear weight for significant amounts of time. Imaging studies revealed no acute bony abnormalities. The impression was right knee pain suggestive of proximal tibiofibular joint pain or lateral bursitis. A steroid injection was administered and the appellant was released to normal work duties. A January 2009 clinical note states that the December 2008 private records had been reviewed. The assessment was right knee bursitis, treated with no limitations, no change in worldwide duty status. On September 19, 2009, the appellant completed a report of medical history on which he reported developing right lower leg problems during a deployment to Mavans Air Base, for which he received a cortisone shot. An October 2010 clinical note states that the appellant was experiencing right lower leg problems, which were a recurring problem from a prior deployment. In his February 2011 post-deployment health re-assessment, the appellant reported problems with his right lower leg. In a Statement in Support of Claim, received in June 2011, the appellant reported that he initially developed right knee pain while working on KC-135R aircraft at Manas Air Base from October 2008 to December 2008. If he put pressure on his knee, such as kneeling or standing on his knees, he experienced, and still experiences, a sharp pain. He presented for examination, was prescribed ibuprofen, and was sent to the Knoxville Orthopedic Clinic. Physical therapy was ordered; however, he was being deployed so he took a steroid injection instead. He reported experiencing the same knee pain while deployed from July 2010 to September 2010. He reported it during his annual physical and the doctor told him to take ibuprofen as needed and wear a band until he could obtain further treatment. X-ray studies of the right knee conducted at a June 2011 VA general medical examination showed mild medial compartment joint space narrowing. The appellant was diagnosed as having right knee strain. In connection with his claim of service connection for a right knee disability, the appellant was afforded a VA examination in February 2012. He reported a gradual onset of mild pain over the lateral distal right knee beginning in 2008. He indicated that he was treated conservatively; however, he continued to experience intermittent pain. The examiner diagnosed the appellant as having right knee strain and bilateral degenerative arthritis. The examiner opined that a right knee disability clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner stated that the appellant admitted that his condition did not significantly worsen upon entering active service. Further, there was no objective evidence that the appellant had substantial changes in his symptomatology. The examiner stated that the appellant's primary contention was that he was on active duty in 2008 when he injured his knee, but service records stated otherwise. In December 2016, VA obtained another medical opinion regarding the appellant's right knee. After reviewing the claims file, the examiner opined that it was less likely than not that the appellant had a right knee disability which was incurred in or caused by active service because there was no medical evidence that the appellant's current diagnosis of right knee osteoarthritis was due to his service or began in service. The examiner explained that the diagnoses of strain and tendonitis/bursitis noted in service treatment records would be anticipated to be self-limiting and would not be expected to cause early-onset arthritis or any other future knee disorder. No significant knee injury was noted to have occurred during service which would be anticipated to cause early-onset arthritis or any other future knee disorder. The appellant was noted to have had no knee complaints in September 2010 when he left active duty. The examiner opined that the most likely etiology of right knee osteoarthritis was the normal aging process. During his August 2017 Board hearing, the appellant testified that there was a great deal of kneeling and bending involved in performing his active duty responsibilities as an aircraft mechanic. On the other hand, he testified that his civilian job as deputy warden of a correctional institution was not physical, but rather administrative. Walking was required, as was occasionally checking under a bed; however, the appellant explained that such position was not physical like his active duty jobs were. Applying the facts in this case to the legal criteria set forth above, the Board finds that service connection for a right knee disability is warranted. According to the appellant's DD Form 214, he was on active duty from October 28, 2008, to December 8, 2008, during which time he first developed chronic right knee pain. He sought treatment while on active duty, as evidenced by the November 2008 treatment records discussed above, and was diagnosed as having tendonitis. The clinical evidence establishes that the appellant's right knee disability has remained chronic and symptomatic since that time, with diagnoses of right knee strain, bursitis, and arthritis. Given the evidence reflecting that the appellant developed a chronic knee disability in service which has persisted to the present day, the Board finds that service connection is warranted. In reaching this decision, the Board has considered the February 2012 VA examination report in which the examiner opined that a right knee disability clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness because the appellant was not on active duty in 2008 when he injured his knee. As set forth above, however, the appellant was, in fact, on active duty in 2008 when he first developed right knee symptoms. Indeed, the record contains no indication that a right knee disability was identified prior to this period of active duty. Absent a notation of a right knee disability on the Veteran's military enlistment medical examination, he is presumed to have been in sound condition at service entrance. 38 C.F.R. § 3.304 (b)(1); Crowe v. Brown, 7 Vet. App. 238, 245 (1994). Given the evidence of record, the February 2012 VA opinion is based on an inaccurate factual premise. However, because the examiner's negative opinion was solely based upon the onset of right knee pain not occurring while on active duty, the Board finds that such medical opinion is, in fact, positive regarding the appellant's current right knee disability being caused by or incurred in active service when the inaccurate factual premise is corrected. The Board has also considered the December 2016 medical opinion, but finds that it is of little probative value. Although the examiner concluded that the appellant's current right knee arthritis was not causally related to service as no significant knee injury was noted to have occurred during service which would be anticipated to cause early-onset arthritis. The examiner opined that the most likely etiology of right knee osteoarthritis was the normal aging process. The examiner, however, failed to discuss whether the appellant's right knee symptoms which developed during active duty in November 2008 represented the onset of arthritis. Given that X-ray studies conducted shortly after service separation which identified right knee arthritis, the Board finds that it is at least as likely as not that the in-service symptoms represented the onset of the chronic right knee disability, to include arthritis. Thus, the Board finds that the evidence is at least in relative equipoise as to whether the appellant's current right knee disability was incurred in or caused by his active service. Affording the benefit of the doubt to the appellant, service connection for a right knee disability is granted. B. Entitlement to an effective date prior to September 9, 2010, for the award of service connection for degenerative disc disease of the cervical spine. As set forth above, the appellant's last day of active service was September 8, 2010. His claim of service connection for a cervical spine disability was received by VA on April 18, 2011, within one year after separation from active service. The RO has granted service connection for cervical spine degenerative disc disease, effective September 9, 2010. As noted above, applicable law and regulations dictate that if a claim is received within one year of separation from service, the effective date is the day following separation from service. See 38 C.F.R. § 3.400(b)(2). Here, the RO has awarded the earliest effective date legally possible, September 9, 2010, the day following the date of the appellant's separation from active service. During the August 2017 hearing, the appellant indicated that he understood that an earlier effective date for the grant of service connection for his cervical spine disability was not possible, particularly because his last period of active duty ended on September 8, 2010. He explained that his actual contention regarding his service-connected cervical spine disability was that his cervical spine disability had increased in severity such that a 30 percent rating was warranted beginning in December 2015. Such is discussed below. C. Increased Rating Claims i. Evidence In a Statement in Support of Claim, received in June 2011, the appellant stated that his neck pain is caused by driving, working at a computer, looking up, swinging a golf club, and driving a nail. He stated that some level of pain is constantly present. The appellant was afforded a VA examination in June 2011. He reported intermittent pain in the cervical spine with radiating into his left upper arm. He also reported stiffness, limited motion, and pain in the posterior neck. There were no flare-ups. Examination revealed mild guarding of the neck over the left paracervical area. There was no ankylosis. Straight leg test was negative. There was no fracture of any vertebral body. Range of motion testing revealed extension to 45 degrees, flexion to 40 degrees, left lateral bending to 40 degrees, right lateral bending to 45 degrees, left rotation to 80 degrees, and right rotation to 80 degrees. Combined range of motion was 330 degrees. Pain was noted at the end of left lateral bending and extension. There was no additional limitation of motion following repetitive-use testing. Gait was normal. Examination was negative for abnormal spinal contour. Imaging studies revealed degenerative changes. The examiner diagnosed the appellant has having degenerative disc disease of the cervical spine. The examiner noted that the appellant had been assigned different duties at work as a result of his disability. There was no history of neurologic symptomatology, such as weakness, paralysis, paresthesias, numbness, memory loss, poor coordination, vision loss, speech difficulty, or other symptoms. All extremities, including peripheral pulses, were normal. Neurologic examination revealed normal coordination, orientation, memory, and speech. Romberg's sign was negative. Bilateral cranial nerve function was normal. Reflexes were normal. Sensory and motor examinations for the bilateral upper extremities were normal. No nerves were affected. Pain/pinprick, position sense, and light touch were normal. There were no dysesthesias. Muscle tone was normal and there was no atrophy. The appellant was afforded a VA examination on February 18, 2012. Intermittent pain, with radiation into the left upper arm, was reported. Flare-ups were denied. Range of motion testing revealed flexion to 45 degrees, extension to 40 degrees, right lateral flexion to 40 degrees, left lateral flexion to 40 degrees, right lateral rotation to 45 degrees, and left lateral rotation to 80 degrees. Combined range of motion was 290 degrees. Pain was observed at 45 degrees on right lateral rotation and at 80 degrees on left lateral rotation. There was no additional limitation following repetitive-use testing. Functional loss or impairment was present in the form of less movement than normal, incoordination, impaired ability to execute skilled movements smoothly, and pain on movement. There was no localized tenderness, pain to palpation, guarding, or muscle spasm. Sensory examination was normal for the bilateral upper extremities. The examiner indicated that the appellant did not "have any other signs or symptoms of radiculopathy." He did not have intervertebral disc syndrome of the cervical spine. There was no impact on the appellant's ability to work. A March 5, 2012, clinical note states that the appellant had a long history of radiating neck pain. Pain was described as a 9 on a scale of 10. Examination revealed minimal tenderness to palpation in the posterior cervical area. Deep tendon reflexes were 1+ and equal at the biceps. The appellant had good motor strength in the bilateral upper extremities. In September 2012, the appellant reported a history of multiple epidural steroid injections in his spine. A November 2015 clinical note from Ortho Tennessee states that the appellant presented with constant, mild pain in the cervical spine. The appellant was afforded a VA examination in December 2015. The appellant reported increased pain as well as radiculopathy into both arms. Flare-ups were reported with lifting, pulling, and overhead work. Functional loss or impairment was reported in the form of decreased flexion and extension with weakness and pain. Forward flexion, extension, right lateral flexion, and left lateral flexion were to 30 degrees each. Right and left lateral rotation were to 50 degrees each. Combined range of motion was 220 degrees. Pain was present on each range of motion. There was objective evidence of pain with weight-bearing, but there was no objective evidence of localized tenderness or pain on palpation. There was no additional limitation of motion following repetitive-use testing. The examination was not conducted during a flare-up; however, it was medically consistent with the appellant's descriptions of functional loss during flare-ups. The examiner opined that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare-ups. Examination was negative for localized tenderness, guarding, or muscle spasm of the cervical spine. There was mild intermittent pain, which was usually dull, mild paresthesias and/or dysesthesias, and mild numbness bilaterally. The C5/C6 nerve roots were involved bilaterally. There was no ankylosis. It was noted that the appellant had intervertebral disc syndrome of the cervical spine which required episodes of bed rest having a total duration of at least one week, but less than two weeks, during the past 12 months. No assistive devices were used. Arthritis was documented in imaging studies. The appellant reported that the functional impact was that his neck pain and weakness interfere with his ability to engage in any exertional activities. The examiner noted that the appellant's cervical spine disc syndrome was progressive. Clinical notes, including those in April 2012, August 2012, January 2013, and February 2017, state that the appellant received epidural steroid injections for his cervical spine. A February 3, 2017, clinical note states that the appellant had chronic neck pain which radiates into the left upper extremity and is associated with tingling into the pinky finger. The appellant was noted to have significant difficulty sleeping due to neck pain. Looking up or holding his hands above his head for extended periods exacerbates his symptoms. He described his pain as a constant pressure and sharp pain, rated as a 5 on a scale of 10. Examination revealed full range of motion. There was no pain with palpation of the cervical spine. The appellant was afforded a VA examination for his cervical spine in April 2017. He reported that he has the same amount of, or more pain, than during his last examination. He stated that he has had two more epidural steroid injections with limited transient improvement. The appellant reported flare-ups with flexion, extension, overhead reaching, and decreased grip. Functional loss or impairment was denied. Range of motion testing revealed flexion to 30 degrees, extension to 30 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 60 degrees, and left lateral rotation to 60 degrees. Combined range of motion was 240 degrees. Pain was noted on all ranges of motion; however, it did not cause functional loss. There was pain with weight-bearing. There was no localized tenderness or pain on palpation. The examination was not conducted during a flare-up; however, it was medically consistent with the appellant's statements describing functional loss during flare-ups. The examiner opined that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare-ups. There was no additional limitation of motion following repetitive-use testing. There was no guarding or muscle spasm. The appellant had radicular pain and other symptoms of radiculopathy. Intermittent, usually dull, pain was mild in the right upper extremity and moderate in the left. There was moderate numbness and there were moderate paresthesias and/or dysesthesias bilaterally. The C5/C6 nerve root group was involved bilaterally. There was no ankylosis. Although the appellant had IVDS, he had not experienced any episodes of acute signs and symptoms due to such which required bedrest prescribed by a physician and treatment by a physician in the last 12 months. No assistive devices were used. The functional impact was a limitation in the ability to engage any kind of manual tasks or tool use. The appellant testified during the August 2017 Board hearing that he believed his cervical spine symptoms had increased in severity as of December 2015, at the time he had an examination for compensation purposes. ii. Entitlement to an initial rating in excess of 10 percent prior to December 28, 2015, and a rating in excess of 20 percent thereafter for degenerative disc disease of the cervical spine. Applying the facts in this case to the criteria set forth above, the Board concludes that prior to December 28, 2015, the preponderance of the evidence establishes that the appellant's service-connected cervical spine disability did not meet or more nearly approximate the criteria for an initial rating in excess of 10 percent. As noted, a 20 percent rating requires forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, combined range of motion of the cervical spine not greater than 170 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, or incapacitating episodes requiring physician-prescribed bedrest having a total duration of at least 2 weeks in the past 12 months. Higher ratings require additional limitations of range of motion or ankylosis. The record in this case shows that in June 2011, the appellant's cervical spine flexion was to 40 degrees and his combined range of motion was 330 degrees. There was no ankylosis. There was mild guarding; however, his gait and spinal contour were normal. In February 2012, flexion was to 45 degrees and combined range of motion was 290 degrees. There was no ankylosis. Examination was negative for guarding, abnormal gait, or abnormal spinal contour. Under these circumstances, the Board finds that the criteria for a rating in excess of 10 percent under the General Rating Formula have not been met. Moreover, there is no evidence, nor does the appellant contend, that he was prescribed bedrest with a total duration of at least 2 weeks in any 12-month period prior to December 28, 2015. Thus, the criteria for a rating in excess of 10 percent under the Formula for rating intervertebral disc syndrome have not been met. The Board observes that the appellant has competently and credibly reported significant neck pain throughout the period on appeal. The record, however, does not show that pain limited his cervical spine motion, including during flare-ups or with repetition, to the extent that the criteria for a rating in excess of 10 percent would be warranted. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011) (holding that pain itself does not rise to the level of functional loss as contemplated by sections 4.40 and 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal). The Board finds that the clinical evidence of record is consistent with the appellant's August 2017 hearing testimony to the effect that his cervical spine disability symptoms seemed to have increased in severity as of the time of the December 28, 2015 examination. In summary, the Board finds that the evidence preponderates against the assignment of an initial rating in excess of 10 percent for the appellant's cervical spine disability prior to December 28, 2015; thus, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). For the period from December 28, 2015, the Board concludes that the criteria for a rating in excess of 20 percent have not been met. As set forth above, examinations and range of motion testing conducted on December 28, 2015, and thereafter show that the appellant's cervical spine disability does not meet the General Rating Formula criteria for a rating in excess of 20 percent. In order to warrant a rating in excess of 20 percent, the evidence must show forward flexion of the cervical spine limited to 15 degrees or less or favorable ankylosis of the entire cervical spine. Here, relevant range of motion testing shows that the appellant retains forward flexion well beyond 15 degrees and examiners have specifically determined that ankylosis is not present. Again, the Board has considered the appellant's credible reports of significant neck pain throughout this period on appeal. The record, however, does not show that pain limited his cervical spine motion, including during flare-ups or with repetition, to the extent that the criteria for a rating in excess of 20 percent would be warranted. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). For example, at the December 2015 examination, the examiner recorded range of motion measurements, noting that the appellant experienced pain throughout motion. There was no indication that pain limited motion additionally beyond the values recorded. In addition, the examiner expressly indicated that there was no additional limitation of motion following repetitive-use testing and, although the examination was not conducted during a flare-up, that day's examination findings were medically consistent with the appellant's descriptions of functional loss during flare-ups. Finally, the examiner opined that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare-ups. Similar conclusions were recorded by the examiner at the April 2017 VA examination. Consideration of the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes also fails to support entitlement to a rating in excess of 20 percent for the appellant's cervical spine disability. The evidence during this period does not show, nor does the appellant contend, that he was prescribed bedrest with a total duration of at least 4 weeks in any 12-month period after December 28, 2015. Thus, the criteria for a rating in excess of 20 percent under the Formula for rating intervertebral disc syndrome have not been met. In summary, the Board finds that the evidence preponderates against the assignment of an initial rating in excess of 10 percent for the appellant's cervical spine disability prior to December 28, 2015, and in excess of 20 percent thereafter; thus, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for a right knee disability is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to an effective date prior to September 9, 2010, for the award of service connection for degenerative disc disease of the cervical spine is denied. Entitlement to an initial rating in excess of 10 percent prior to December 28, 2015, and in excess of 20 percent thereafter for degenerative disc disease of the cervical spine, is denied. REMAND Service connection for bilateral hearing loss has been denied by the AOJ, in part because the appellant did not have hearing loss for VA purposes. 38 C.F.R. § 3.385. However, during his August 2017 Board hearing, the appellant indicated that he believes that his hearing acuity has further deteriorated since he was last examined for compensation purposes. In light of the appellant's credible testimony and the evidence currently of record, the Board finds that a new medical examination and opinion must be obtained. See 38 U.S.C. § 5103; 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board observes that the appellant's military occupational specialty (MOS) was aircraft maintenance. During the August 2017 hearing, the appellant reported that he last worked in April 2011, although he officially retired in 2012 after exhausting his sick leave. A completed Request for Employment Information was received from the appellant's last employer in February 2017. The form noted that the appellant had retired from his position as a deputy warden and his last day of employment was July 20, 2012. With respect to the claim of entitlement to an effective date earlier than January 8, 2016 for the award of TDIU, service connection for a right knee disability has been granted in this decision and the AOJ has not yet assigned a rating or effective date. The Board does not assign a disability rating or effective date in the first instance; rather, the grant of service connection is a full grant of the benefits sought on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). Thus, entitlement to TDIU prior to January 8, 2016, is inextricably intertwined with the forthcoming AOJ rating of his right knee disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review meaningless and a waste of judicial resources, the two claims are inextricably intertwined). After the appellant's right knee disability is assigned an initial rating and an effective date, entitlement to TDIU prior to January 8, 2016, should be readjudicated. For any portion of such period during which the appellant does not meet the schedular criteria for TDIU, the AOJ should determine whether referral to the Director, Compensation Service, for extraschedular consideration is warranted. Accordingly, the case is REMANDED for the following action: 1. Afford the appellant an examination for the purpose of ascertaining the nature and etiology of any current bilateral hearing loss. Access to the claims file should be made available to the examiner for review in connection with the examination. After examining the appellant and reviewing the record, the examiner should provide an opinion as to whether it is at least as likely as not that any current bilateral hearing loss identified on examination is causally related to the appellant's active service or any incident therein. The examiner is directed to observe that the appellant's DD-214s indicate that his MOS was aircraft maintenance and the appellant reported constant exposure to loud noises while on active duty. 2. After undertaking any additional administrative or development actions deemed necessary, and after a rating is assigned for the appellant's service-connected right knee disability, the AOJ should readjudicate the claims, considering all the evidence of record. For any period during which the appellant does not meet the schedular criteria for TDIU, the AOJ should determine whether referral to the Director, Compensation Service, is warranted for extraschedular consideration. If the benefits sought are not granted in full, furnish the appellant a Supplemental Statement of the Case and the opportunity to respond. This matter should then be returned to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ K. Conner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs