Citation Nr: 1804163 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 17-64 642 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to higher disability ratings for bilateral high frequency hearing loss, rated as 40 percent disabling prior to February 18, 2014, and 60 percent disabling since that date. 2. Entitlement to a higher rating for low back strain, rated as 40 percent disabling. 3. Entitlement to service connection for right shoulder condition, to include as secondary to service-connected low back strain. 4. Entitlement to service connection for a neck condition, to include as secondary to service-connected low back strain. 5. Entitlement to an effective date earlier than July 14, 2016 for a total disability rating based on individual employability (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD Amanda Baker, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1968 to April 1979. These matters come to the Board of Veterans' Appeals (Board) on appeal from July 2013 and January 2014 rating decisions of the Department of Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The July 2013 rating decision continued the assigned ratings of 40 percent for hearing loss, and 40 percent for low back strain. The January 2014 rating decision, again, continued the 40 percent rating for low back strain, and denied service connection for neck and right shoulder conditions. In July 2014, the Veteran filed an application for a TDIU claimed as due to all his service-connected disabilities. In an October 2016 rating decision, the RO denied entitlement to a TDIU, and increased the disability rating assigned to hearing loss to 60 percent, effective February 18, 2014. Insofar as higher ratings are available for the hearing loss disability and the Veteran is presumed to be seeking the maximum available benefit, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 39 (1993). In a November 2017 rating decision, the RO, in relevant part, granted entitlement to a TDIU, effective July 14, 2016. In December 2017, the Veteran disagreed with this rating decision seeking an earlier effective date for the grant of a TDIU. As such, the TDIU claim has been reacharacterized as reflected on the title page. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issue of entitlement to an earlier effective date for a TDIU is addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to February 18, 2014, the Veteran has manifested no worse than Level II hearing acuity in the left ear and Level V hearing acuity in the right ear. 2. Since February 18, 2014, the Veteran has manifested no worse than Level IX hearing acuity in both left and right ears. 3. Throughout the appeal period, the Veteran's low back strain disability has not resulted in ankylosis or Intervertebral Disc Syndrome (IVDS) with incapacitating episodes of at least 6 weeks during a 12 month period. 4. A neck condition did not have onset during active service, did not manifest within one year from separation from active service, and was not otherwise caused by active service. 5. A right shoulder condition did not have onset during active service, did not manifest within one year from separation from active service, and was not otherwise caused by active service. CONCLUSIONS OF LAW 1. The criteria for higher disability ratings for bilateral high frequency hearing loss, rated as 40 percent disabling prior to February 18, 2014, and 60 percent disabling since, have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.85, 4.86, Diagnostic Code 6100 (2017). 2. The criteria for a higher rating for low back strain, rated as 40 percent disabling, have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2017). 3. The criteria for service connection for a neck condition have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 4. The criteria for service connection for a right shoulder condition have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See generally, 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). 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). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). A. Hearing Loss The Veteran claims that his service-connected bilateral high frequency hearing loss is more disabled than reflected by the current assigned disability ratings. He is currently assigned a 40 percent rating prior to February 18, 2014, and 60 percent from that date under 38 C.F.R. § 4.85, Diagnostic Code 6100 (2017). Ratings for hearing loss disability are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level, in decibels (dB) as measured by pure tone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz (Hz). 38 C.F.R. § 4.85, Diagnostic Code 6100. An examination for hearing impairment for VA purposes must include a controlled speech discrimination test (Maryland CNC). Id. To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Other than exceptional cases, VA arrives at the proper designation by mechanical application of Table VI, which determines the designation based on results of standard test parameters. Id. Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear. Id. Exceptional patterns of hearing impairment allow for assignment of the Roman numeral designation through the use of Table VI or an alternate table, Table VIA, whichever is more beneficial to the Veteran. 38 C.F.R. § 4.86. This applies to two patterns. In both patterns each ear will be evaluated separately. Id. The first pattern is where the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 dB or more. 38 C.F.R. § 4.86(a). The second pattern is where the pure tone threshold is 30 decibels or less at 1000 Hz and 70 dB or more at 2000 Hz. Id. If the second pattern exists, the Roman numeral will be elevated to the next higher numeral. Id. In describing the evidence the Board refers to the frequencies of 1000 Hz, 2000 Hz, 3000 Hz, and 4000 Hz, as the frequencies of interest. a. For the period prior to February 18, 2014 The Veteran was afforded a VA audiological examination in May 2013. The examination revealed left ear auditory thresholds in the frequencies 1000, 2000, 3000, and 4000 Hertz as 35, 45, 60, and 70 dB respectively; for the right ear, auditory thresholds in the same frequencies were recorded as 35, 60, 70, and 75 dB. Average loss in the left ear was listed as 52, and average loss in the right ear was 60. Speech recognition ability was 84 percent in the left ear and 68 percent in the right ear. The results of this examination corresponded to Level II hearing in the left ear and Level V hearing in the right ear. 38 C.F.R. § 4.85(b). When these values are applied to Table VII, a 10 percent disability rating is assigned. 38 C.F.R. § 4.85. The examination report indicates that the Veteran described the functional impact of his hearing loss as difficulty understanding speech. It was noted that employment was not precluded due to hearing loss. b. For the period from February 18, 2014 The Veteran was afforded a VA audiological examination in September 2016. The examination revealed left ear auditory thresholds in the frequencies 1000, 2000, 3000, and 4000 Hertz as 55, 70, 80, and 105 respectively; for the right ear, auditory thresholds in the same frequencies were recorded as 55, 80, 80, and 105 dB. Average loss in the left ear was listed as 77.5, and average loss in the right ear was 80. Speech recognition ability was 44 percent in the left ear and 48 percent in the right ear. The results of this examination corresponded to Level IX hearing in both the left and right ears. 38 C.F.R. § 4.85(b). When these values are applied to Table VII, a 60 percent disability rating is assigned. 38 C.F.R. § 4.85. The Board has also considered the applicability of 38 C.F.R. § 4.86(a), as the puretone threshold at each of the four specified frequencies is 55 dB or more demonstrating exceptional patterns of hearing impairment; however the applicability of this provision is not more beneficial for the Veteran. Under Table VIA, the results of this examination correspond to Level VII hearing in both left and right ears. 38 C.F.R. § 4.86(a). When these values are applied to Table VII, a 40 percent disability rating is assigned. The examination report also indicates that the Veteran described the functional impact of his hearing loss as difficulty in telephone conversations. For business communication, he reported sending text messages, emails or audible communication face to face. A May 2017 private Employment Evaluation, documents the Veteran's report of communication problems attributed to his bilateral hearing loss disability. The Veteran reported using numerous hearing aids without success. He reported having hearing difficulties when he worked in 2007 and 2009. He recounted attending a hearing fair in January 2015 and opined that he was not offered a job due to difficulty hearing during the interview process. The vocational expert opined that based on the combination of the Veteran's service-connected disabilities, to include hearing loss and lumbar strain, he was unable to secure a substantially gainful occupation. Pertinent to hearing loss, the vocational expert stated that this disability caused communication difficulties. Based on the above, the Board concludes that an increased rating for the Veteran's bilateral hearing loss disability is not warranted for any stage of his appeal. It is apparent that the assigned disability evaluations for the appeal periods for the Veteran's bilateral hearing loss are accurate and appropriately reflect his bilateral hearing loss under the provisions of 38 C.F.R. §§ 4.85 and 4.86. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an increased evaluation for his bilateral hearing loss under 38 C.F.R. §§ 4.85 or 4.86, Diagnostic Code 6100. B. Lumbar Strain Disability The Veteran claims entitlement to a higher disability rating due to worsening of his lumbar strain condition. See June 2016 Correspondence. In addition, he claims entitlement to a higher rating due to flare-ups, pain, functional loss, and use of a cane. See September 2016 Correspondence. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). In the case before the Board, a higher rating would require ankylosis or extended periods of bedrest. As such, whether there was testing on passive and active motion and in weight-bearing and nonweight-bearing is not significant because even if pain was elicited, it would not result in a higher rating. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 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 excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). These provisions, however, are not for application where, as here, the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis. Johnson v. Brown, 10 Vet. App. 80, 84-85 (1997). Since the grant of service connection in April 1982, the Veteran has been assigned a 40 percent disability rating for his low back strain disability under Diagnostic Code 5237for lumbosacral or cervical strain (formerly evaluated under Diagnostic Code 5299-5295, in effect prior to September 26, 2003). That rating has been in place for more than 20 years and is therefore protected. See 38 C.F.R. § 3.951 (2017). The Veteran filed his claim for increased evaluation on October 26, 2012; the Board has therefore considered whether an increase is warranted to include up to one year prior to the date of claim. See 38 C.F.R. § 3.400(o) (2017). Disabilities of the spine are rated under the under the General Rating Formula for Diseases and Injuries of the Spine (General Formula) found at 38 C.F.R. § 4.71a. Intervertebral disc syndrome can, alternately, be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes" also found at § 4.71a. The General Formula specifies that the criteria and ratings apply with or without symptoms such as pain (whether or not it radiates) stiffness, or aching in the area affected by residuals of injury or disease. The General Formula provides that an evaluation of 40 percent rating is warranted for forward flexion of the thoracolumbar spine 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. Id. Ankylosis is defined, for VA compensation purposes, as a condition in which all or part of the spine is fixed in flexion or extension. Id. at Note (5). The General Formula directs raters that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. Id. at Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion for the cervical spine is 340 degrees, and the normal combined range of motion for the thoracolumbar spine is 240 degrees. Id. at Note (2). Under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes a 60 percent evaluation is assigned where there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. A 40 percent rating is assigned where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. Id. Note (1) states that for purposes of evaluations of intervertebral disc syndrome, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Id. at Note (2); see also 38 C.F.R. § 4.71, Plate V. 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. 38 C.F.R. § 4.71a General Formula at Note (2). The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id. Degenerative arthritis is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5003, on the basis of limitation of motion as per the diagnostic codes for the specific joint. If the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is assigned for each major joint or group of minor joints affected by limitation of motion. Id. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. In the absence of limitation of motion, a 10 percent rating can be assigned for x-ray evidence of 2 or more major joints or 2 or more minor joint groups and a 20 percent rating can be assigned if such involvement includes occasional incapacitating episodes. Id. Note (1) under Diagnostic Code 5003 provides that the 20 percent and 10 percent ratings based on x-ray findings will not be combined with rating based on limitation of motion. The Veteran underwent a VA back examination in May 2013. He reported daily back pain that increased with walking and standing, and denied flare-ups. On examination, he had forward flexion limited to 50 degrees and extension to 20 degrees, both with objective evidence of painful motion respectively. He was able to perform repetitive use testing with three repetitions with no additional functional loss. The examination report noted that functional loss of the thoracolumbar spine caused symptoms of less movement than normal, weakened movement, and pain on movement. Tenderness was noted, but no fatigability, incoordination, swelling, atrophy, or instability. There was also no evidence of radicular pain or other neurologic abnormalities. No functional impairment was found. May 2013 magnetic resonance images (MRI) show lumbar spondylosis with canal, neural foraminal narrowing, and multilevel degenerative disc disease (DDD) and facet hypertrophy. The Veteran participated in physical therapy for lumbar pain. The Veteran was afforded a VA back examination in August 2013. A physical examination was not conducted. He reported flare-ups with weather changes. It was noted that he used a cane regularly. No functional impact was found. January 2015 x-rays of the lumbar spine show degenerative changes. That same month, a MRI of the lumbar spine showed multilevel degenerative changes, canal and foraminal stenosis that appeared to affect the nerve roots, large posterior left disc extrusion, and infrarenal aortic aneurysm. December 2015 VA treatment records documents full range of motion in all extremities and a normal neurological examination. The Veteran denied weakness, fatigue, joint pain, swelling, stiffness, or numbness. The Veteran was afforded a VA back examination in January 2016. He reported a prior history of radiating pain in the left lower extremity. He also reported flare-ups and functional loss. On examination, forward flexion was limited to 45 degrees and extension to 10 degrees. It was noted that his flexion caused functional loss, but he was able to bend to pick up items on the floor. Pain was described as causing functional loss in forward flexion, extension, and right and left lateral flexion. There was no pain with weight bearing. Tenderness over lumbosacral paraspinous muscles was found. The Veteran was able to perform repetitive use testing with at least three repetitions and no additional functional loss. As for whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use, or flare-ups, the examiner was unable to provide opinions because the Veteran was not examined under these conditions. He had localized tenderness, but full muscle strength and negative straight leg raising tests. There was no ankylosis. IVDS of the thoracolumbar spine was found, but it did not result in any episodes that required best rest prescribed by a physician in the past 12 months. Radicular mild pain in the left lower extremity was noted, but the examiner noted that it was difficult to determine whether it was attributed to his diabetes or spine. Lastly, the examiner remarked that the Veteran's gait appeared normal and he was able to walk on toes, heels, and perform toe-heel and knee bend. As for functional impact, the Veteran reported to have difficulties working more than 3 hours a day. He also reported working at a farmer's market for 1.5 hours at a time and stated that his back hurts when he is sharpening knives. The examiner noted that potential work related limitations included repetitive bending forward and repetitive lifting The Veteran underwent another VA back examination in July 2016. He reported flare-ups described as constant pain. He also reported functional loss treated with a cane. On examination, forward flexion was limited to 60 degrees and extension limited to 10 degrees. It was noted that he could not reach objects on the ground or barely bend backwards. Pain was described as causing functional loss at all exhibited range of motion. There was no objective evidence of tenderness. The Veteran was able to perform repetitive-use testing with at least three repetitions, but additional loss of function was found at 40 degrees flexion, 5 degrees extension, 15 degrees left lateral flexion, and at 10 degrees right lateral flexion /rotation and left lateral rotation. Symptoms of pain and lack of endurance were noted. The examiner indicated that pain, weakness, fatigability or incoordination does limit the Veteran's functional ability over time. As for flare-ups, the examiner opined that the examination was medically consistent with the Veteran's statements describing functional loss during a flare-up. Muscle spasms were found, but not abnormal gait or spinal contour. There was no evidence of localized tenderness, guarding, atrophy, or ankylosis. The Veteran had full muscle strength, normal to hypoactive reflex exams, and normal sensory exams. Straight leg raising tests were positive. There was evidence of mild radiculopathy in the right and left lower extremities. IVDS of the spine was found, but the examiner did not state whether it was accompanied with episodes of bed rest and duration. It was noted that the Veteran regularly uses a cane as an assistive device. As for functional impact, the Veteran complained of constant pain and frequent exacerbations causing difficulty with his job duties. A May 2017 private Employment Evaluation, documents the Veteran's complaints of chronic pain and problems with activities of daily living due to back pain, as well as a combination of his service-connected disabilities. He complained of pain, including acute exacerbations, stiffness, and problems bending and sitting for an extended period of time. The vocational expert opined that he was precluded from employment due to his service-connected disabilities. Pertinent to his back disability, she stated the Veteran was unable to sit, stand, or bend for an extended period of time. Based on the above, the preponderance of the evidence is against finding that a rating in excess of 40 percent under Diagnostic Code 5237. Under the applicable diagnostic code, a higher rating requires symptoms of unfavorable ankylosis of the thoracolumbar or entire spine. Id. The Veteran has severe limitation of motion, but no ankylosis. See January and July 2016 VA Examination Reports. There is also no indication of incapacitating episodes of IVDS as they are defined in the applicable regulations during the period on appeal. As such, an evaluation in excess of 40 percent is not warranted. A higher rating is not available for degenerative arthritis, rated under 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under this diagnostic code, the highest rating available is 20 percent. Thus, the criteria for degenerative arthritis would not offer him a higher evaluation than he already holds for his lumbar spine disability. Id. As for radiculopathy, the Veteran has been separately granted service-connection for right and left lower extremity radiculopathy evaluated as each 10 percent disabling. See November 2017 Rating Decision. As appeal of the ratings assigned to these disabilities is not currently before the Board, further discussion is unwarranted. The Board is aware that the radiculopathy is part of his spine disability. There is no argument of record disputing the ratings assigned by the AOJ. If the Veteran disagrees with those ratings or the date of the ratings he has until one year after notification of the November 2017 rating decision to initiate an appeal. Under these circumstances it would be premature to now address the propriety of those ratings, including the date assigned. In conclusion, the Board finds that there is no factually ascertainable date on which there was an increase in symptomatology, warranting a rating in excess of 40 percent for the Veteran's lumbar strain disability. See 38 C.F.R. § 3.400(o). C. Other Considerations The Board also finds that the schedular rating criteria adequately describe the Veteran's symptoms and disabilities. This means that the Veteran's disabilities do not manifest with an exceptional disability picture. See Thun v. Peake, 22 Vet. App. 111 (2008). In the absence of an exceptional disability picture, there is no factual basis for referral for a higher rating on an extraschedular basis for his service-connected disabilities. 38 C.F.R. § 3.321(b)(1). Here, the symptoms that the Veteran has reported are all contemplated by the rating schedule. For hearing loss, his symptoms include difficulty hearing conversations on the phone and in person. These are not unusual or exception symptoms, but rather are contemplated by the rating schedule which tests for speech recognition as well as thresholds. As for lumbar strain disability, his complaints are difficulty with standing, sitting, and bending as well as pain, which are also not unusual or exceptional symptoms. Neither disability has caused him to be hospitalized; however, to the extent that they have interfered with his work, in a November 2017 rating decision, the RO based his entitlement to TDIU, in part, on his hearing loss and lumbar strain disabilities. See 38 C.F.R. § 3.321(b)(1); see also 38 C.F.R. § 4.16. As such the regular schedular criteria provide for adequate compensation. For these reasons, the Board declines to remand the claims just discussed for referral for extraschedular consideration. For the foregoing reasons, the preponderance of the evidence is against the assignment of higher ratings that those currently assigned for the Veteran's bilateral hearing loss and lumbar strain disabilities for all periods on appeal, and the appeals as to higher ratings for those disabilities must be denied. There is no reasonable doubt to be resolved as to these issues. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. III. Service Connection The Veteran contends that his right shoulder and neck conditions are secondary to his service-connected lumbar strain. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112, (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017). Additionally, service connection may be established on a secondary basis for a disability which is proximately due to, or aggravated by, service-connected disease or injury. Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Service treatment records do not contain any complaints of or treatment for right shoulder or neck conditions. On February 1979 pre-retirement examination, clinical evaluation of the upper extremities was normal. Clinical evaluation of the spine was abnormal; however, the report attributes such abnormality to a lumbar strain. July 2011 private treatment records document the Veteran's report of neck pain radiating to the right shoulder. The Veteran attributed pain to exercising with a punching bag during a martial arts workout program. See also January 2012 Private Orthopedic Treatment Records. Based on examination, an impression of cervical spondylosis with radicular right shoulder pain and possible tendinitis was provided. November 2011MRI tests showed moderate to severe cervical spondylosis with evidence of spinal, central, and foraminal stenosis. The Veteran subsequently received treatment at a pain center for neck and right upper extremity pain starting in January 2012, to include steroid injections. February 2012 private treatment records document complaints of ongoing right shoulder and neck pain. The treating physician advised the Veteran to stop participating in aggressive activities, to include boxing or mossad combat activities. September 2012 orthopedic progress notes document the Veteran's report that associated neck pain was aggravated by an aggressive martial arts defense training program. It was noted that he was referred for electrical studies in November 2011. There was no evidence of cervical radiculopathy, but symptoms were suggestive of cervical nerve root irritation or previous transient compression of the cervical nerve, most likely precipitated by his martial arts class. In February 2012 at a follow-up visit with an orthopedic surgeon, the Veteran was provided medication management advice and instructed to avoid certain activities, to include no boxing or combat techniques previously participated in. In September 2012, he complained of back and neck pain. Surgery was discussed, but progress notes stated that the Veteran was only interested in non-surgical options. He was provided medication and the physician opined that he would eventually need surgery for his neck and shoulder conditions. August 2013 physical therapy progress notes contain a diagnosis of cervical lumbar facet pain and myofascial pain syndrome. The Veteran was afforded a VA examination in August 2013. Pertinent to his neck claim, a review of the claims file was noted. A diagnosis of cervical spondylosis with central canal stenosis was provided. He reported having neck pain starting in the mid-1990's. He stated that his neck condition worsened after using a chainsaw to cut tree limbs after Hurricane Katrina. Based on a review of the claims file, the examiner provided a negative nexus opinion on the relationship between the Veteran's current cervical spine disability and his service-connected lumbar strain disability. The examiner stated that there is no relationship between the cervical spine and lumbar disabilities, as the lumbar spine is removed from the cervical area. As rationale, the examiner acknowledged that degenerative changes in both areas frequently co-exist, however, the development of DDD in one area of the spine does not cause, predispose, or aggravate DDD in another area. Based on medical research, the examiner attributed cervical spinal stenosis to the natural aging process as such condition is a result of genetic predisposition and "wear and tear" on the spine from daily activities. In reference to this shoulder claim, a review of the claims file was again noted. The Veteran reported radiating pain in his right shoulder. A diagnosis of right shoulder impingement syndrome, since November 2011, was provided. Based on a review of the claims file, the examiner provided a negative nexus opinion on the relationship between the Veteran's current right shoulder impingement syndrome and his service-connection lumbar strain disability. The examiner stated that the current right shoulder condition was neither cause by, secondary to, or aggravated by his back condition. A. Right Shoulder Condition As mentioned above, the Veteran generally contends to have a right shoulder condition due to his service-connected lumbar strain disability. Considering the evidence of record under the laws and regulations set forth above, the Board concludes that the Veteran is not entitled to service connection for a right shoulder condition. While the Veteran has a current diagnosis of right shoulder impingement syndrome, his condition was not related to, nor had its onset during active military service. As noted above, service treatment records are negative for any diagnosis of or treatment for a right shoulder condition. Further, the Veteran does not contend that his right shoulder condition is directly related to service. The first manifestation of a right shoulder condition was in May 2011, more than 30 years after service. The Board notes that the passage of time between the Veteran's discharge and an initial diagnosis for the claimed disorder is one factor that weighs against the Veteran's claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The record provides no evidence of a connection between the right shoulder condition and military service. Thus, service connection on a direct basis is not warranted. Regarding secondary service connection, there is no medical evidence supporting a finding that his current right shoulder condition is related to his service-connected lumbar strain disability. Upon August 2013 examination, the examiner opined that the Veteran's current right shoulder disability was not related to his lumbar strain disability. Consistent with the August 2013 VA opinion, the record suggests that the right shoulder condition is due to the Veteran's post-service exercise activities. Notably, 2011 orthopedic treatment records document the Veteran's initial report of right shoulder pain attributed to punching an exercise bag during a martial arts workout program. As such, the objective medical findings and opinions provided by the August 2013 VA examiner are the most probative evidence of record in this regard and the criteria for service connection on a secondary basis are not satisfied. B. Neck Condition The Veteran claims to have a neck condition secondary to his service-connected lumbar spine disability. He reports that neck pain started in approximately the 1990's. See August 2013 VA Examination Report. Considering the evidence of record under the laws and regulations set forth above, the Board concludes that the Veteran is not entitled to service connection for a neck condition. Here, the record demonstrates that the Veteran has a current diagnosis of cervical spondylosis with central canal stenosis; however, there is no supporting evidence that this disability is related to active duty service. Service treatment records are negative for any diagnosis of or treatment for a neck condition. Although on pre-retirement assessment, a clinical evaluation of the spine was abnormal, such abnormality was attributed to his lumbar, not cervical, spine. Further, the Veteran does not contend that his neck condition is directly related to service or that he has had continuous symptoms since service. On the contrary, he reports that neck pain started in the 1990's. The first manifestation of a neck condition was in 2011, more than 30 years after service, which is evidence that weighs against the claim. As such, service connection on a direct or presumptive basis is not warranted. As for secondary service connection, there is no medical evidence supporting a finding that his current neck condition is related to his service-connected lumbar strain disability. On the contrary, on August 2013 examination, the examiner provided a negative nexus opinion and stated that there was no relationship between the Veteran's current neck and lower back disabilities. The examiner acknowledged that degenerative changes in both areas frequently co-exist; however, the examiner explained that the development of DDD in one area of the spine does not cause, predispose, or aggravate DDD in another area. The Veteran's current neck disability was attributed to predisposition and the natural aging process. The Board finds this opinion highly probative as evidence against the claim because it includes a logical rationale supporting its conclusion. The only evidence of record suggesting a link or nexus between the Veteran's current right shoulder and neck conditions and his service-connected lumbar strain, comes from the Veteran himself. While the Veteran is competent to provide statements relating to symptoms or facts of events that he has observed and is within the realm of his personal knowledge, he is not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). The record does not show, nor does the Veteran contend, that he has specialized education, training, or expertise that would qualify him to render a diagnosis or render a medical opinion on this matter. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the issue in this case is outside the realm of common knowledge of a lay person because it involves a complex medical issue that goes beyond a simple and immediately observable cause-and-effect relationship. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). The cause of a right shoulder impingement syndrome and cervical spondylosis with central canal stenosis both demonstrated many years after a period of active service are complex questions, not simple ones, and under the facts of this case, not questions that can be answered by a lay person. Medical expertise is required to provide competent opinions with regard to these questions. As such, the Veteran's statements to this effect are lacking in probative value. For the reasons stated above, the Board concludes that the preponderance of evidence is against granting service connection for right shoulder and neck conditions, on any theory of entitlement raised by the Veteran or the record. Thus, there is no reasonable doubt to be resolved in the Veteran's favor, and the claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to higher disability ratings for bilateral high frequency hearing loss, rated as 40 percent disabling prior to February 18, 2014, and 60 percent disabling since that date, is denied. Entitlement to a higher rating for low back strain, rated as 40 percent disabling, is denied. Entitlement to service connection for a right shoulder condition is denied. Entitlement to service connection for a neck condition is denied. REMAND As for the remaining TDIU claim on appeal, as indicated in the introduction, in a November 2017 rating decision, the RO granted entitlement to a TDIU and assigned an effective date of July 14, 2016, date of VA contract examination and opinion. The RO issued a statement of the case (SOC) in November 2017, however, it did not readjudicate the TDIU issue. In in December 2017, the Veteran timely submitted a notice of disagreement (NOD) with the downstream issue of effective date assigned to his TDIU. The Court has held that, when an appellant files a timely NOD as to a particular issue and no statement of the case (SOC) is furnished, the Board should remand, rather than refer, the claim for issuance of an SOC. Under these circumstance, a SOC concerning the issue of entitlement to an earlier effective date for a TDIU should be issued. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) Furnish the Veteran a SOC regarding the claim for entitlement to an effective date earlier than July 14, 2016 for a TDIU. The Veteran must be informed that he must file a timely substantive appeal in order to perfect an appeal to the Board. 38 C.F.R. §§ 20.200, 20.202, 20.302(b). Only if the Veteran files a timely appeal should this issue be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs