Citation Nr: 18147029 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 16-18 884 DATE: November 2, 2018 ORDER 1. Entitlement to a disability rating in excess of 30 percent for status-post cervical fusion of the C5-C6 spinal segments with degenerative joint disease (DJD) (cervical spine disability) from February 14, 2014, to February 24, 2016, is denied. 2. A disability rating of 40 percent, but not higher, since February 25, 2016, for the service connection cervical spine disability is granted. 3. Entitlement to a disability rating in excess of 40 percent for degenerative disc disease (DDD) of the lumbar spine (lumbar spine disability) is denied. 4. Entitlement to a disability rating in excess of 20 percent for a sensory deficit of the right lower extremity is denied. 5. Entitlement to an initial disability rating in excess of 20 percent for radiculopathy of the left lower extremity is denied. 6. Entitlement to a compensable disability rating for an anterior cervical scar is denied. 7. Entitlement to a disability rating in excess of 10 percent for bilateral sensorineural hearing loss from February 14, 2014, to February 23, 2016, and in excess of 20 percent since February 24, 2016, is denied. 8. Entitlement to a disability rating in excess of 10 percent for tinnitus is denied. 9. Entitlement to an effective date prior to February 14, 2014, for the grant of service connection for radiculopathy of the left lower extremity is denied. FINDINGS OF FACT 1. The Veteran’s cervical spine disability has not manifested with unfavorable ankylosis of the entire cervical spine prior to February 25, 2016, and this disability has not manifested with unfavorable ankylosis of the entire spine at any time during the appeal period. 2. Throughout the appeal, the Veteran’s lumbar spine disability has not manifested with unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. 3. The Veteran’s sensory deficit of the right lower extremity did not manifest with an incomplete paralysis of the sciatic nerve that was moderately severe in severity during the appeal. 4. The Veteran’s radiculopathy of the left lower extremity did not manifest with an incomplete paralysis of the sciatic nerve that was moderately severe in severity during the appeal. 5. For the entire period on appeal, the Veteran’s anterior cervical scar manifested as one superficial and linear scar measuring 9 centimeters (cm) by 0.1 cm in size, which was not painful or unstable. 6. The Veteran’s bilateral sensorineural hearing loss has been productive of a pure tone threshold average of 70 decibels (dB) in the right ear and 79 dB in the left ear and speech recognition ability of 90 percent in the right ear and 84 percent in the left ear, at worst, prior to February 24, 2016, and this disability has been productive of a pure tone threshold average of 66 dB in the right ear and 76 dB in the left ear and speech recognition ability of 80 percent in the right ear and 72 percent in the left ear, at worst, since February 24, 2016. 7. The Veteran is in receipt of the maximum schedular disability rating for tinnitus. 8. The Veteran did not file an informal or formal claim showing an intent to file a claim for service connection for radiculopathy of the left lower extremity prior to February 14, 2014. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 30 percent for the cervical spine disability from February 14, 2014, to February 24, 2016, have not been met; however, the criteria for entitlement to a disability rating of 40 percent, but not higher, since February 25, 2016, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242 (2017). 2. The criteria for entitlement to a disability rating in excess of 40 percent for the lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, DC 5242. 3. The criteria for entitlement to a disability rating in excess of 20 percent for a sensory deficit of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8520 (2017). 4. The criteria for entitlement to an initial disability rating in excess of 20 percent for radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8520. 5. The criteria for entitlement to a compensable disability rating for an anterior cervical scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.118, DC 7800 (2017). 6. The criteria for entitlement to a disability rating in excess of 10 percent for bilateral sensorineural hearing loss from February 14, 2014, to February 23, 2016, and in excess of 20 percent since February 24, 2016, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.85, DC 6100 (2017). 7. The criteria for entitlement to a disability rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.87, DC 6260 (2017). 8. The criteria for entitlement to an effective date prior to February 14, 2014, for the grant of service connection for radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 5101, 5110 (2012); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400 (2017); 38 C.F.R. § 3.155(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from May 1967 to August 1971. Increased Ratings, Generally The Veteran contends that his service-connected cervical spine disability, lumbar spine disability, right lower extremity sensory deficit, left lower extremity radiculopathy, anterior cervical scar, bilateral sensorineural hearing loss disability, and tinnitus should be rated higher than the currently-assigned disability ratings. VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R., Part IV. Disability evaluations assess the ability of the body as a whole, the psyche, or a body system or organ to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id. In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as “staged ratings.” The record shows that the Agency of Original Jurisdiction (AOJ) interpreted the Veteran’s application for increased compensation based on unemployability (VA Form 21-8940), which was received by VA on February 14, 2014, as his attempt to file increased rating claims for the disabilities on appeal; thus, the appeal periods stem from that date. When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a) (2012). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 1. - 3. Cervical Spine and Lumbar Spine Disabilities The Veteran contends that his cervical spine disability should be rated higher than 30 percent disabling, and that his lumbar spine disability should be rated higher than 40 percent disabling. The Board shall analyze these disabilities together because the evidence concerning these disabilities is located in the same medical treatment records and lay statements. All spinal disabilities are evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (DC 5243), whichever method results in the higher rating. Under the General Rating Formula, a 30 percent rating is warranted when forward flexion of the cervical spine is 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. The General Rating Formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate DC. 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, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. 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 normal combined range of motion of the thoracolumbar spine is 240 degrees and the normal combined range of motion of the cervical spine is 340 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 ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. at Note (2). The Formula for Rating IVDS Based on Incapacitating Episodes provides a 60 percent rating for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243 (2017). An incapacitating episode is defined as 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). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. The provisions of 38 C.F.R. § 4.40 allow for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Under 38 C.F.R. § 4.45, functional loss due to weakened movement, excess fatigability, and incoordination must also be considered. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Furthermore, 38 C.F.R. § 4.59 recognizes that painful motion is an important factor of disability. Joints that are painful, unstable, or misaligned, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id.; see Burton v. Shinseki, 25 Vet. App. 1 (2011). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011). As noted above, the AOJ interpreted the Veteran’s February 2014 formal application for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) as claims for increased ratings for the cervical and lumbar spine disabilities. The April 2014 and May 2014 private chiropractic treatment records show that the Veteran injured his back and neck in March 2014 while playing with a dog. After evaluating and treating the Veteran’s spinal disabilities for approximately two months, this chiropractor did not diagnose or indicate that the Veteran had ankylosis in his spine. While the chiropractor noted the Veteran’s limited ranges of motion of the lumbar and cervical segments of the spine, the Board notes that the Schedule assigns disability ratings in excess of the ratings already-assigned for the Veteran’s disabilities based on the presence of ankylosis of the cervical, thoracolumbar, or the entire spine. Thus, although the claims file contains evidence throughout the appeal, including in the July 2014 and February 2016 VA examination reports, showing the Veteran’s ranges of motion of the cervical and thoracolumbar spine, the Board shall analyze the evidence in the claims file that pertains to the presence, or lack thereof, of ankylosis in the Veteran’s spine. A July 2014 VA examination of the Veteran’s cervical and lumbar spine showed that he complained of limited ranges of motion, as well as limited prolonged sitting, standing, bending, and lifting. After examining the Veteran, reviewing his pertinent records, and noting his self-reported history and symptoms, the examiner noted that the Veteran had limited ranges of motion in flexion, extension, and right and left lateral rotations, as well as less movement than normal, excess fatigability, pain on movement, and interference with sitting, standing, and/or weight-bearing; however, the examiner did not note the presence of any ankylosis, either favorable or unfavorable, in any segment of the spine. The Veteran used a cane on a regular basis. Additionally, the examiner noted that the Veteran did not have any neurological abnormalities due to his cervical spine symptoms, and this examiner did not find that the Veteran had any incapacitating episodes due to his cervical and/or lumbar spine disabilities in the previous year. The examiner determined that the Veteran had bilateral lower extremity radiculopathy due to the lumbar spine disability, which the Board shall discuss in another section of this decision below. While this examiner noted that the Veteran’s cervical and lumbar spine disabilities impacted his ability to work, the Board notes that the Veteran is in receipt of a TDIU rating since April 15, 2010. In a September 2015 notice of disagreement (NOD), the Veteran disagreed with the evaluation of the cervical and lumbar spine disabilities by “checking off” a box; however, he did not provide any assertions regarding why he believed that his cervical and lumbar spine disabilities should be rated higher than the currently-assigned disability ratings. The Veteran was afforded new VA examinations for his cervical and thoracolumbar spine symptoms in February 2016. During these examinations, the Veteran complained of not being able to move his head up and down and that he could not bend over and had problems picking objects up due to his back. After reviewing the pertinent records, performing an-person examination, and noting the Veteran’s self-reported symptoms and history, the examiner determined that the Veteran had unfavorable ankylosis of the cervical spine, but that he did not have favorable or unfavorable ankylosis in his thoracolumbar spine, or unfavorable ankylosis in the entire spine. The examiner noted that the Veteran was unable to look up or bend his neck in certain normal positions. However, the examination showed that the Veteran did not have any incapacitating episodes due to the cervical or lumbar spine disabilities in the previous year. Furthermore, the examiner determined that the Veteran did not have any neurological symptoms, such as bladder or bowel problems, due to his cervical or lumbar spine disabilities. Given this evidence, the Board determines that a disability rating in excess of 30 percent from February 14, 2014, to February 24, 2016, for the Veteran’s cervical spine disability is not warranted. Similarly, the Board determines that a rating in excess of 40 percent is not warranted for the Veteran’s lumbar spine disability during the appeal. However, after resolving all doubt in the Veteran’s favor, the Board determines that a rating of 40 percent, but not higher, is warranted since February 25, 2016, for the Veteran’s cervical spine disability. Specifically, after thoroughly reviewing the claims file, including the July 2014 and February 2016 VA examination reports, the Board finds that the Veteran’s cervical spine disability has not manifested with unfavorable ankylosis of the entire cervical spine prior to February 25, 2016, and this disability has not manifested with unfavorable ankylosis of the entire spine at any time during the appeal period. Additionally, the Board finds that the Veteran’s lumbar spine disability has not manifested with unfavorable ankylosis of the entire thoracolumbar spine or the entire spine at any time during the appeal. However, the record indicates that the February 25, 2016, VA examination for the cervical spine disability showed the presence of unfavorable ankylosis in the cervical spine. The Board has considered whether higher ratings should be assigned pursuant to 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, and Mitchell criteria but determines that higher ratings are not warranted for the Veteran’s disability picture. The ranges of motion testing conducted during the medical evaluations considered the thresholds at which pain limited motion. The Veteran reported having flare-ups of his symptoms during certain evaluations and the medical examinations showed the presence of any additional functional impairment due to such symptoms as pain, pain on repeated use, fatigue, weakness, lack of endurance, and incoordination. However, even though there is evidence of reduced forward flexion and overall ranges of motion, and even after considering the effects of pain and functional loss, the evidence does not show the presence of unfavorable ankylosis in the cervical spine prior to February 25, 2016, or the presence of ankylosis in the thoracolumbar spine or the entire spine at any time during the appeal. Thus, higher ratings under these provisions are not approximated in the Veteran’s disability picture. The Board has also considered the application of the Formula for Rating IVDS Based on Incapacitating Episodes to the Veteran’s symptoms, but determines that a rating under these criteria would not provide a higher benefit. Specifically, the evidence does not establish that the Veteran experienced incapacitating episodes of IVDS lasting a total of at least four, but less than six, weeks during any 12-month period on appeal. All of the medical evidence shows that the Veteran denied having any incapacitating episodes during the previous 12 months. See 38 C.F.R. § 4.71a, DC 5243, Note (1). Thus, the application of the Formula for Rating IVDS Based on Incapacitating Episodes would not provide a higher benefit for the Veteran’s disability picture. In sum, as the preponderance of the evidence is against a disability rating in excess of 30 percent for the cervical spine disability from February 14, 2014, to February 24, 2016, or a disability rating in excess of 40 percent for the lumbar spine disability during the appeal, the benefit-of-the-doubt rule does not apply, and the Veteran’s claims must be denied. However, after affording the Veteran the benefit of the doubt, a disability rating of 40 percent, but not higher, for the cervical spine disability is warranted since February 25, 2016. Accordingly, the claim is granted for this portion of the appeal period. See 38 C.F.R. §§ 4.3, 4.71a, DC 5242. 4 - 5. Right and Left Lower Extremity Disabilities The Veteran contends that his right and left lower extremity neurological disabilities should be rated higher than 20 percent disabling. Because the evidence pertaining to the severity of these disabilities is located in the same or similar documents, the Board shall analyze these disabilities together below. The Veteran’s disabilities are rated under 38 C.F.R. § 4.124a, DC 8520, which rates neurologic manifestations of the lower extremities associated with the sciatic nerve. A 20 percent rating requires evidence of moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires evidence of moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating requires evidence of severe incomplete paralysis with marked muscular atrophy. Finally, the maximum 80 percent rating requires evidence of complete paralysis, where the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. The term “incomplete paralysis,” with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, they should be combined with application of the bilateral factor. See 38 C.F.R. § 4.124a. An April 2014 private chiropractic progress note showed that he Veteran’s Braggard’s Sign and heel-toe tests were negative for both sides. The Veteran’s achilles reflexes were normal for the right and left lower extremities. A July 2014 VA examination of the peripheral nerves showed that the Veteran complained of mild constant pain in both lower extremities, and symptoms of moderate intermittent pain, paresthesias and/or dysesthesias, and numbness in both lower extremities. Muscle strength and reflex testing was normal and the Veteran did not have any muscle atrophy; however, his ankle reflexes were hypoactive. The Veteran’s sensory examination showed decreased sense in the lower extremities; however, he did not have any trophic changes. Following an in-person physical examination, the examiner determined that the Veteran had mild incomplete paralysis of the sciatic nerve in both lower extremities. The Veteran underwent another VA examination for his peripheral nerve symptoms in February 2016, which showed his complaints of moderate constant and intermittent pain in both lower extremities, as well as moderate paresthesias and/or dysesthesias in the left lower extremity. The Veteran also complained of severe paresthesias and/or dysesthesias in the right lower extremity and severe numbness in both lower extremities. Muscle strength testing showed active movement against some resistance in both lower extremities, but the Veteran did not have any muscle atrophy. Reflex testing showed hyperactive reflexes without clonus in the knees and ankles. A sensory examination showed normal results in the upper anterior thighs and thigh/knees, but decreased senses in the foot/toes and lower leg/ankles. The examiner determined that the Veteran had incomplete paralysis of the sciatic nerve that was moderately severe in the right lower extremity and that he had incomplete paralysis of the sciatic nerve that was mild in severity in the left lower extremity. Additionally, the examiner determined that the Veteran had incomplete paralysis of the right external popliteal (common peroneal) and the anterior tibial (deep peroneal) nerves that were mild in severity. The Board notes that service-connection for the Veteran’s right external popliteal and anterior tibial nerves is not in effect, and the record does not show that the neurological disorders associated with these nerves are caused by the Veteran’s service-connected lumbar spine disability. The examiner determined that the Veteran’s bilateral peripheral neuropathy symptoms impacted his ability to work because he cannot stand or walk without using a cane. The examiner determined that the Veteran had radiculopathy in the right lower extremity and that this disorder was a progression of his previous diagnosis of a sensory deficit in the right lower extremity. Given this evidence, the Board finds that the Veteran’s right and left lower extremity neurological disabilities did not manifest with an incomplete paralysis of the sciatic nerve that was moderately severe in severity during the appeal. Specifically, while the Veteran has alleged that his symptoms have included severe paresthesias and/or dysesthesias in the right lower extremity and severe numbness in both lower extremities, the medical evidence indicates otherwise. Specifically, the July 2014 VA examiner determined that the Veteran’s bilateral lower extremity symptoms resulted in mild incomplete paralysis of the sciatic nerve. While the February 2016 VA examiner determined that the Veteran had moderately severe incomplete paralysis of the sciatic nerve of the right lower extremity, the record shows that this determination was based wholly on sensory involvement of this nerve. VA regulations indicate that when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. See 38 C.F.R. § 4.124a. Overall, these examiners’ findings are highly probative evidence regarding the current severity of these disabilities because of the examiners’ expertise, training, education, proper support and explanations, and thorough review of the Veteran’s records and self-reported symptoms. Accordingly, disability ratings in excess of 20 percent for the Veteran’s sensory deficit of the right lower extremity and radiculopathy of the left lower extremity are not warranted. Accordingly, as the preponderance of the evidence is against disability ratings in excess of 20 percent for these disabilities, the benefit-of-the-doubt rule does not apply, and the claims must be denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.124a, DC 8520; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 6. Anterior Cervical Scar The Veteran contends that his neck scar should be rated higher than the currently assigned zero percent disability rating. The Veteran’s scar is rated as noncompensable (zero percent) pursuant to 38 C.F.R. § 4.118, DC 7800. Under DC 7800, which rates scars or other disfigurement of the head, face, or neck, a 10 percent rating is assigned for one scar characteristic of disfigurement. A 30 percent rating is warranted for scars with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement. A 50 percent rating is warranted for scars with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement. An 80 percent rating is warranted for scars with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement. Id. Note (1) indicates the eight characteristics of disfigurement, for purposes of evaluation under 38 C.F.R. § 4.118, are: (1) scar 5 or more inches (13 or more cm.) in length, (2) scar at least one-quarter inch (0.6 cm.) wide at widest part, (3) surface contour of scar elevated or depressed on palpation, (4) scar adherent to underlying tissue; (5) skin hypo-or hyper-pigmented in an area exceeding six square inches (39 square cm.), (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 square cm.), (7) underlying soft tissue missing in an area exceeding six square inches (39 square cm.), and (8) skin indurated and inflexible in an area exceeding six square inches (39 square cm.). Id at Note (1). A July 2014 VA examination showed that he had one scar on the anterior side of the cervical region, which was due to a cervical fusion surgery. The examiner determined that his scar was not painful, unstable, or with frequent loss of covering of skin over the scar, and that it was not painful and unstable. The examiner noted that this scar was 9 cm by 0.1 cm in size. The examiner also determined that there was no elevation, depression, adherence to the underlying tissue, or missing underlying tissue around the scar, and that the Veteran did not have any abnormal pigmentation or texture of the head, face, or neck due to the scar. This scar did not result in limitation of function or impact the Veteran’s ability to work. Similarly, a February 2016 VA examination showed that the Veteran had one linear scar in the anterior cervical/neck region. The examined determined that the Veteran’s scar did not result in disfigurement of the head, face, or neck. This scar was not painful or unstable. This examiner also determined that the Veteran’s scar did not result in limitation of function or impact the Veteran’s ability to work. Given this evidence, the Board finds that a compensable disability rating is not warranted during the appeal for the anterior cervical scar. Specifically, the July 2014 and February 2016 VA examination reports show that the Veteran’s scar manifested as one superficial and linear scar measuring 9 cm by 0.1 cm in size, and that it was not painful or unstable. Thus, a compensable disability rating is not warranted at any time on appeal. Accordingly, as the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. 7. - 8. Bilateral Sensorineural Hearing Loss and Tinnitus The Veteran asserts that his bilateral sensorineural hearing loss and tinnitus disabilities should be rated higher than the currently-assigned disability ratings. The Board shall analyze these disabilities together because the evidence concerning these disabilities is located in the same medical treatment records and lay statements. Hearing loss is evaluated under 38 C.F.R. § 4.85, DC 6100 using a mechanical formula. Additionally, VA must analyze the functional effects caused by a hearing loss disability. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). Under DC 6100, disability ratings for service-connected hearing loss range from noncompensable to 100 percent and are determined by inserting numbers, which are assigned based on the results of audiometric evaluations, into Table VI. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Schedule establishes eleven auditory acuity levels that range from Level I (essentially normal hearing acuity) to Level XI (profound deafness). Id. The level of auditory acuity is based on the average pure tone threshold (derived from the results of pure tone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second) and organic impairment of hearing acuity (measured by controlled speech discrimination tests). See 38 C.F.R. § 4.85, Table VI. The columns in Table VI represent nine categories of dB loss as measured by pure tone threshold averages. The rows in Table VI represent nine categories of organic impairment of hearing acuity as measured by speech discrimination tests. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the column that represents the relevant pure tone threshold average with the row that represents the relevant speech discrimination test result. Id. The percentage evaluation is derived from Table VII in 38 C.F.R. § 4.85 by intersecting the row that corresponds to the numeric designation for the ear with better hearing acuity (as determined by Table VI) and the column that corresponds to the numeric designation level for the ear with the poorer hearing acuity (as determined by Table VI). For example, if the better ear has a numeric designation Level of “V” and the poorer ear has a numeric designation Level of “VII,” the percentage evaluation is 30 percent. See id. Tinnitus is rated under 38 C.F.R. § 4.87, DC 6260, which provides a maximum 10 percent evaluation for recurrent tinnitus. Note (2) states that a single evaluation for recurrent tinnitus is to be assigned, whether tinnitus is present in one or both ears. A higher evaluation for tinnitus is not available in the Schedule. The Veteran underwent a VA audiological examination in July 2014, during which his audiogram showed that the pure tone thresholds, in dB, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 40 75 80 85 70 LEFT 45 80 85 105 79 Speech discrimination tests used the Maryland CNC word list and revealed speech recognition ability of 90 percent in the right ear and 84 percent in the left ear. The Veteran stated that he had difficulty understanding speech in noisy environments or in groups. The examiner determined that the Veteran’s hearing loss impacted his ordinary conditions of daily life, including his ability to work. This examiner also noted that the Veteran had symptoms of recurrent tinnitus, but that this disability did not impact his ordinary conditions of daily life, including his ability to work. The Veteran underwent another VA audiological examination in February 2016, during which his audiogram showed that the pure tone thresholds, in dB, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 35 75 75 80 66 LEFT 40 75 85 105 76 Speech discrimination tests used the Maryland CNC word list and revealed speech recognition ability of 80 percent in the right ear and 72 percent in the left ear. The Veteran told the examiner that his hearing loss disability impacted his ordinary conditions of daily life, including his ability to work, because he did not hear exact words well and he mixed things up. This examiner also noted that the Veteran had symptoms of recurrent tinnitus, which interfered with his ability to hear. Given this evidence, the Board finds that the Veteran’s bilateral sensorineural hearing loss has been productive of a pure tone threshold average of 70 dB in the right ear and 79 dB in the left ear and speech recognition ability of 90 percent in the right ear and 84 percent in the left ear, at worst, prior to February 24, 2016, and this disability has been productive of a pure tone threshold average of 66 dB in the right ear and 76 dB in the left ear and speech recognition ability of 80 percent in the right ear and 72 percent in the left ear, at worst, since February 24, 2016. The Board has considered the Veteran’s statements and complaints; however, the Board determines that the evidence which shows the Veteran’s speech discrimination findings using the Maryland CNC test and pure tone threshold findings is the most probative evidence in evaluating the Veteran’s bilateral sensorineural hearing loss disability. See Martinak, 21 Vet. App. at 447. As noted above, Table VI in 38 C.F.R. § 4.85 combines the pure tone average and the speech recognition scores to produce a numeric designation for each ear, which is inserted into Table VII in 38 C.F.R. § 4.85 to determine the correct disability level. Because the right ear had a pure tone average of 70 dB and a speech recognition score of 90 percent during the July 2014 VA audiological examination, it receives a designation of III. See id. Similarly, because the left ear had a pure tone average of 79 dB and a speech discrimination score of 84 percent during the same examination, it also receives a designation of III. See id. The intersection of designations III and III on Table VII establishes that the Veteran’s hearing loss disability is not entitled to a disability rating in excess of 10 percent prior to February 24, 2016. See 38 C.F.R. § 4.85, DC 6100. Similarly, because the right ear had a pure tone average of 66 dB and a speech recognition score of 80 percent during the February 2016 VA audiological examination, it receives a designation of IV. See id. Likewise, because the left ear had a pure tone average of 76 dB and a speech discrimination score of 72 percent during the same examination, it receives a designation of VI. See id. The intersection of designations IV and VI on Table VII establishes that the Veteran’s hearing loss disability is not entitled to a disability rating in excess of 20 percent since to February 24, 2016. See 38 C.F.R. § 4.85, DC 6100. Thus, the preponderance of the evidence, including the VA examination reports, is against a disability rating in excess of 10 percent for bilateral sensorineural hearing loss from February 14, 2014, to February 23, 2016, and in excess of 20 percent since February 24, 2016. The impairment associated with the Veteran’s disability is contemplated by the rating criteria, which consider the average impairment resulting from a service-connected disability. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Absent audiometric and speech discrimination scores showing that the Veteran’s bilateral sensorineural hearing loss disability meets the Schedular criteria in excess of the disability ratings already assigned, his reported functional impairment does not warrant a higher rating. See 38 C.F.R. § 4.85; Lendenmann, 3 Vet. App. at 349. Furthermore, the Board has reviewed the evidence of record and finds that a disability rating in excess of 10 percent for tinnitus is not warranted during the appeal. Specifically, the Veteran is already in receipt of the maximum schedular disability rating for this disability. As there is no legal basis upon which to award a higher schedular evaluation for tinnitus, or separate schedular evaluations for tinnitus in each ear, the Veteran’s appeal is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); see also 38 C.F.R. § 4.87, DC 6260. Accordingly, as the preponderance of the evidence is against the Veteran’s claims, the benefit-of-the-doubt rule does not apply, and the claims must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 4.3; Gilbert, 1 Vet. App. at 49.   Earlier Effective Date 9. Earlier Effective Date for Grant of Service Connection for Left Lower Extremity Radiculopathy The Veteran contends that the effective date assigned for the award of service connection for radiculopathy of the left lower extremity should be earlier than February 14, 2014. The law regarding effective dates states that, 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 application therefor. 38 U.S.C. § 5110(a). This statutory provision is implemented by a VA regulation, which provides that the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a)(1); 38 C.F.R. § 3.151(a). For claims received on or after March 24, 2015, VA amended its regulations governing how to file a claim. The effect of the amendment was to standardize the process of filing claims, as well as the forms accepted, in order to increase the efficiency, accuracy, and timeliness of claims processing, and to eliminate the concept of informal claims. See 38 C.F.R. § 3.155; 79 Fed. Reg. 57660-01. However, prior to the effective date of the amendment, an informal claim was any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA. The benefit sought must be identified, but need not be specific. See 38 C.F.R. § 3.155(a) (2013). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. Id. “Application” is not defined by 38 U.S.C. § 5110(a). However, in the regulations, “claim” and “application” are considered equivalent and are defined broadly to include “a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.” See 38 C.F.R. § 3.1(p) (2013); see also Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999). The United States Court of Appeals for the Federal Circuit (Federal Circuit), in Rodriguez, pointed out that for purposes of establishing the requirements and procedures for seeking veterans’ benefits, a claim, whether “formal” or “informal” must be “in writing” in order to be considered a “claim” or “application” for benefits, and that the provisions of 38 C.F.R. § 3.1(p) define “claim,” informal as well as formal, as a “communication in writing.” Id. Further, the Federal Circuit stated that when 38 C.F.R. § 3.155(a) refers to “an informal claim,” it necessarily incorporates the definition of that term in 38 C.F.R. § 3.1(p) as a “communication in writing.” The Federal Circuit also pointed out that the provisions of 38 C.F.R. § 3.155(a) make clear that there is no set form that an informal written claim must take. All that is required is that the communication “indicat[e] an intent to apply for one or more benefits under the laws administered by the Department,” and “identify the benefits sought.” However, medical evidence reflecting treatment for and diagnosis of a disorder does not constitute, by itself, an informal original claim for service connection under 38 C.F.R. § 3.155(a), “because the mere presence of the medical evidence does not establish an intent on the part of the veteran to seek” service connection for that disorder. MacPhee v. Nicholson, 459 F.3d 1323, 1326 (Fed. Cir. 2006). The Board has thoroughly and sympathetically reviewed the evidence of record and finds that the effective date earlier than February 14, 2014, for the grant of service connection for radiculopathy of the left lower extremity is not warranted because the Veteran did not file an informal or formal claim, or expressed, in writing, an intent to file a claim for service connection for this disability prior to February 14, 2014. The procedural history of this claim shows that the Veteran filed a formal claim for entitlement to a TDIU rating, which was received by VA on February 14, 2014. The AOJ construed this claim as an attempt by the Veteran to file increased rating claims for all of his service-connected disabilities, including his lumbar spine disability. The Veteran was granted service connection for the radiculopathy of the left lower extremity by a September 2014 rating decision, effective February 14, 2014, after a July 2014 VA examination report showed that he had radiculopathy of the left lower extremity that was caused by his service-connected lumbar spine disability. See 38 C.F.R. § 4.71a, Note (1). The preponderance of the evidence is against a finding that the Veteran showed an intent, expressed in writing, that he wished to file a claim for service connection for radiculopathy of the left lower extremity prior to February 14, 2014. See MacPhee, 459 F.3d at 1326. In fact, the Veteran and his previous representative have not submitted reasons why they believe that the effective date for the grant of service connection for radiculopathy of the left lower extremity should be earlier than February 14, 2014, apart from generally claiming that an earlier effective date is warranted and “checking off” a box indicating that they disagreed with the assigned effective date in the September 2015 NOD and April 2016 substantive appeal to the Board (VA Form 9). For all the reasons laid out above, the Board finds that the proper effective date for the award of service connection for radiculopathy of the left lower extremity is February 14, 2014. Accordingly, the claim of entitlement to an effective date prior to February 14, 2014, is denied because the AOJ has already assigned the earliest possible effective date provided by law. See 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.155(a), 3.400; 38 C.F.R. § 3.155(a) (2013). A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Hodzic, Counsel