Citation Nr: 1806684 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 06-27 671 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for a respiratory disability. 2. Entitlement to an initial rating in excess of 20 percent for a right shoulder disability. 3. Entitlement to an initial compensable rating for left varicocele. 4. Entitlement to an initial compensable rating for a right inguinal hernia. 5. Entitlement to an initial compensable rating for bilateral hearing loss from April 1, 2003 to November 11, 2015, and an initial rating in excess of 20 percent beginning on November 11, 2015. 6. Entitlement to initial ratings for a low back disability in excess of 10 percent from April 1, 2003 to May 18, 2016 and in excess of 20 percent beginning on May 18, 2016. 7. Entitlement to an initial compensable rating for right lower extremity radiculopathy prior to May 18, 2016 and initial rating in excess of 10 percent beginning on this date. 8. Entitlement to an initial compensable rating for left lower extremity radiculopathy prior to May 18, 2016 and initial rating in excess of 10 percent beginning on this date. 9. Entitlement to initial ratings for bilateral flat feet in excess of 10 percent from April 1, 2003 to May 18, 2016 and in excess of 30 percent beginning May 18, 2016. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty in the Marine Corps from June 1962 to April 1966, from January 1978 to June 1978, and from December 1978 to March 2003. This appeal to the Board of Veterans' Appeals (Board) is from a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the case in September 2009 for additional development. The Veteran also appealed the denial of service connection for a cervical spine disability. The RO granted the claim in June 2016, so the matter is no longer before the Board. The issues of higher ratings for a right inguinal hernia, bilateral hearing loss, low back disability, and bilateral lower extremity radiculopathy are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's service-connected respiratory disability has required daily inhalational or oral bronchodilator therapy and pulmonary function findings of FEV-1 have been greater than 55 percent of predicted; there is no objective indication of at least monthly visits to a physician for required care of exacerbations, or at least three courses of systemic corticosteroids yearly. 2. Throughout the appeal, the right shoulder disability was manifested by pain, fatigue, flare-ups, lack of endurance, and forward flexion limited to 82 degrees, and an inability to carry and lift items; there was no ankylosis or impairment of the humerus, scapula, or clavicle. 3. Throughout the appeal, the Veteran's left varicocele has been asymptomatic. 4. Prior to January 4, 2011, the Veteran's bilateral foot disability was manifested by no worse than moderate pes planus. 5. From January 4, 2011 the bilateral foot disability has been manifested by no worse than severe pes planus and at no time were hammertoes in all toes and severe hallux valgus shown. CONCLUSIONS OF LAW 1. The criteria are not met for an initial rating in excess of 30 percent rating for the Veteran's service-connected respiratory disability. 38 U.S.C. §§ 5107, 1155 (2012); 38 C.F.R. §§ 3.102, 4.96, 4.97, Diagnostic Code 6602 (2017). 2. Resolving reasonable doubt in the Veteran's favor, the criteria are met for an initial rating of 30 percent, but no higher, for a right shoulder disability. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5010, 5201, 5203 (2017). 3. The criteria for an initial compensable rating for a left varicocele have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.115b, Diagnostic Codes 7120, 7523 (2017). 4. The criteria are not met for initial ratings in excess of 10 percent for a bilateral foot disability prior to January 4, 2011 and in excess of 30 percent beginning on May 18, 2016. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276 (2017). 5. Resolving reasonable doubt in the Veteran's favor, the criteria are met for an initial rating of 30 percent, but no higher, for a bilateral foot disability from January 4, 2011 to May 18, 2016. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 3.326(a) (2017). Since the initial ratings are at issue, the notice requirements have been met because the initial intended purpose of the notice has been served. Additional notice is not required concerning "downstream" elements of the claims. Dunlap v. Nicholson, 21 Vet. App. 112 (2007). As to VA's duty to assist, the Board finds that all necessary development has been accomplished to include obtaining treatment records and arranging for VA examinations. There has been no allegation of any prejudicial duty to assist errors in this case. Therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Legal Criteria and Analysis Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If the disability has undergone varying and distinct levels of severity throughout this time period, staged ratings may be assigned. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Daye v. Nicholson, 20 Vet. App. 512 (2006). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C. § 5107. When, after careful consideration of all the procurable and assembled data, a reasonable doubt arises regarding service origin or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Respiratory The Veteran's asthmatic COPD is rated by analogy under Diagnostic Code 6602 (bronchial asthma), which assigns a 30 percent for FEV-1 of 56- to 70- percent predicted; or, FEV-1/FVC of 56 to 70 percent; or, daily inhalational or oral bronchodilator therapy; or, inhalational anti-inflammatory medication. A rating of 60 percent is assigned for FEV-1 of 40- to 55- percent predicted; or, FEV-1/FVC of 40 to 55 percent; or, at least monthly trips to a physician for required care of exacerbations; or, intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. A rating of 100 percent is assigned for FEV-1 less than 40- percent predicted; or, FEV-1/FVC less than 40 percent; or, more than one attack per week with episodes of respiratory failure; or, requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. See 38 C.F.R. § 4.97, Diagnostic Code 6602. Post-bronchodilator studies are required for disability evaluation purposes except when the post-bronchodilator studies are poorer than the pre-bronchodilator results, when the results of pre-bronchodilator pulmonary function tests are normal, or when the examiner determines that post-bronchodilator studies should not be done and states why. 38 C.F.R. § 4.96 (d)(4)(5). When there is a disparity between the results of different pulmonary function tests, VA must use the test result that the examiner states most accurately reflects the level of disability. 38 C.F.R. § 4.96(d)(6). Coexisting respiratory conditions may not be assigned separate ratings. 38 C.F.R. § 4.96(a). After reviewing the evidence of record, the Board finds that a rating in excess of the current 30 percent is not warranted. Specifically, there is no evidence that the Veteran's respiratory disability involved at least monthly trips to a physician for required care of exacerbations. Treatment records from December 2009 to April 2014 do not reflect monthly visits for exacerbations. See pages 14, 30, and 74 of Medical Treatment record - Government Facility received in August 2017. Furthermore, the treatment records and VA examinations show that the Veteran's disability did not require intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids and PFTs did not reveal findings consistent with a higher rating. On January 2004 VA examination, the pulmonary function test (PFT) revealed FEV-1 was 85.7 percent predicted; in January 2011, the PFT was normal; and on May 2016 VA examination, the PFT revealed FEV-1 was 86 percent predicted and FEV-1/FVC was 93 percent. See pages 5 to 7 of Medical Treatment record - Government Facility received in February 2004, VA Examination received in May 2016, and page 30 of Medical Treatment record - Government Facility received in August 2017. The May 2016 examiner noted that the DCLO was not indicated in the Veteran's case. Higher ratings are not assignable under Diagnostic Codes 6600, 6603, or 6604 since these codes also require at least FEV-1 of 40- to 55- percent predicted or FEV-1/FVC of 40 to 55 percent. Furthermore, there is no evidence of right ventricular hypertrophy, pulmonary hypertension, respiratory failure, or outpatient oxygen therapy. Diagnostic Code 6601 is also not applicable since a higher rating under this code required incapacitating episodes of infections or near constant cough with purulent sputum associated with anorexia, weight loss, or frank hemoptysis. See 38 C.F.R. § 4.97. The treatment records and examinations show no evidence of these symptoms. The Board has considered the Veteran's statements. On January 2004 VA examination, he had a history of expiratory wheezing after exertion. Attacks occurred when the weather was humid, with exertion such as walking up hill or steps, or when exposed to chemical fumes. His baseline functioning between attacks were mild complaints of daily dyspnea. Regarding chest tightness and audible breathing, he had severe complaints on exertion. His complaints started after climbing two flights of stairs and he breathed with effort on mild to moderate exertion. On May 2016 VA examination, the Veteran continued to have a history of dyspnea on exertion. He also had a cough, frequent bronchitis, and was sensitive to cigarette smoke. His respiratory disability continued to require daily use of inhalation bronchodilator therapy and inhalation of anti-inflammatory medication. The examiner noted that the Veteran had dyspnea on exertion and was unable to perform any strenuous activity. Dyspnea developed on examination with only mild exertion and his symptoms had progressed from his previous evaluation. The Board acknowledges that the Veteran is competent to report his symptoms. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). While he believes that his symptoms are of such severity as to warrant an initial increased evaluation, they are not shown to be consistent with criteria for a higher rating. Absent evidence that his reported symptoms are severe enough to result in FEV-1 of 40 to 55 percent predicted or FEV-1/FVC of 40 to 55 percent, cause respiratory failure, require outpatient oxygen therapy, involve at least four to six weeks of incapacitating episodes per year, near constant cough with purulent sputum associated with anorexia, weight loss, and frank hemoptysis they do not meet or approximate criteria for a higher rating. See 38 C.F.R. § 4.97, Diagnostic Codes 6600, 6602, and 6604. In light of the foregoing, a preponderance of the evidence is against the claim. In reaching this determination, the Board is mindful that all reasonable doubt is to be resolved in the Veteran's favor. However, since the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Right Shoulder The Veteran's right shoulder disability is rated 20 percent disabling. Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 degrees to 180 degrees, abduction from 0 degrees to 180 degrees, external rotation from 0 degrees to 90 degrees, and internal rotation from 0 degrees to 90 degrees. 38 C.F.R. § 4.71, Plate I. The Veteran is right-handed. See STR- Medical. Under Diagnostic Code 5201, limitation of motion of the major arm at the shoulder level (i.e., motion limited to 90 degrees) is assigned a 20 percent rating. Limitation of motion midway between the side and the shoulder level (i.e., motion limited from 45 to 90 degrees), is assigned a 30 percent evaluation. A maximum 40 percent evaluation is assigned for the major arm when limitation of motion is limited to 25 degrees from the side. 38 C.F.R. § 4.71a (2017). The provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 must be considered in assigning an evaluation for degenerative or traumatic arthritis under Diagnostic Code 5003 or 5010. Rating personnel must consider functional loss and clearly explain the impact of pain on the disability. VAOPGCPREC 9-98. The provisions of 38 C.F.R § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). On January 2004 VA examination, the Veteran complained of right shoulder pain and an inability to sleep on his right side as a result. He was also unable to use a screw driver without it eliciting pain. He was unable to lift weights, but he could perform normal daily activities without any major complaints. On examination, passive shoulder abduction was from 0 to 167 degrees with a painful arc upward between 126 and 167 degrees. When going down he had pain from 163 to 90 degrees. Forward flexion was from 0 to 160 degrees with a painful arc between 0 to 126 degrees and 0 to 160 degrees. Internal and external rotations were from 0 to 90 degrees and were with pain. Active range of motion was from 0 to 157 degrees with a painful arc between 0 to 126 degrees and 0 to 157 degrees. Internal and external rotation was the same as with passive motion and was also with pain. With pain on use, shoulder abduction and forward flexion were from 0 to 126 degrees and internal and external rotation was again unchanged. Motion against strong resistance revealed abduction and forward flexion from 0 to 90 degrees. With repetitive motion, the Veteran tired out in motion above 90 degrees, and abduction was to 82 degrees, forward flexion was to 85 degrees, and external and internal rotation were still to 90 degrees. The Veteran had tenderness that was more marked when the right arm was extended and all right-sided motion was slower in anticipation of pain. Regarding endurance, he could perform light and short-term activities with the right arm up, but lifting and carrying objects was only possible as long as the arm could be held down. See Medical Treatment record - Government Facility received in February 2004. In April 2005, he reported having pain with active movement and with lifting objects. See page 23 of Medical Treatment record - Government Facility received in August 2006. On May 2016 VA examination, the Veteran reported symptoms were right shoulder pain, limited motion, and an inability to lift. Functional loss was characterized by being unable to put his right arm above his head. He had flare-ups when he tried to carry anything and flare-ups prevented him from sleeping and driving. Range of motion studies revealed forward flexion to 110 degrees, abduction to 130 degrees, external rotation to 40 degrees, and internal rotation to 90 degrees. Abnormal range of motion did not contribute to functional loss. Repetitive motion testing did not reveal a decrease in motion. Instead, flexion was to 120 degrees, abduction was to 140 degrees, external rotation was to 60 degrees and internal rotation was to 90 degrees. There was pain on active, passive, or repetitive use and it contributed to functional loss or additional limitation of motion. There was pain in weight bearing or nonweight bearing and it also contributed to functional loss or additional limitation of motion. The right shoulder had mild tenderness to palpation and pain on movement. Pain, weakness, fatigability or incoordination could significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time. During these times the estimated flexion and abduction were to 100 degree and external rotation was to 60 degrees and internal rotation was to 90 degrees. There was no evidence of ankylosis. Strength testing was normal. There was a history of mechanical symptoms but no recurrent dislocation. From an employment standpoint, his right shoulder disability kept him from driving long distances, moving his arm over his head, and lifting or carrying things. See VA Examination received in May 2016. Throughout the appeal, the Veteran's right shoulder disability was manifested by pain and limitation of motion. His motion at worst was limited to 82 of abduction and 85 degrees of forward flexion. However, when taking into consideration such factors such as flare-ups, fatigability, and lack of endurance with functional impairment that prevented him from lifting and carrying things, reasonable doubt is raise as to whether the disability more closely approximates the criteria for a 30 percent rating. Thus, resolving reasonable doubt in the Veteran's favor, an initial rating of 30 percent, but no higher, for the right shoulder disability is granted. 38 U.S.C. 5107(b); see Gilbert, supra. There are also there are other diagnostic codes related to shoulder impairment; however, the Veteran's disability does not involve dislocation of the scapulohumeral joint or any impairment of the right humerus, clavicle, or scapula. Therefore, Diagnostic Codes 5202 and 5203 are not applicable. Ankylosis of the shoulder is not present so Diagnostic Code 5200 is also not applicable. See 38 C.F.R. § 4.71a. Left Varicocele A varicocele is a "condition manifested by abnormal dilation of the veins of the spermatic cord, [which results] in impaired drainage of blood into the spermatic cord veins when the patient assumes the upright position." Nici v. Brown, 9 Vet. App. 494, 495 (1996) (citing Stedman's Medical Dictionary 1907 (26th ed. 1995)). The Veteran contends his service-connected left varicocele should be assigned a compensable rating; however, he has not elaborated on this contention in any of the statements he has submitted in support of his claim. For example, he has not described any symptoms associated with his left varicocele nor has he described how this disability impacts his ability to function. The only medical evidence associated with this disability is on May 2016 VA examination. The clinician noted that there was no evidence of recurrent left varicocele and currently no symptoms. The Veteran did not take medication for any symptoms and there was no voiding dysfunction or recurrent symptomatic urinary tract or kidney infections. There was no abnormality on examination except a scar that was not painful and/or unstable nor did it have a total area of 39 square cm. The evidence did not show there was a return since he had a surgical repair. See VA Examination received in May 2016. The Veteran's disability has been evaluated by analogy to varicose veins under Diagnostic Code 7599-7120. Diagnostic Code 7120 allows for a noncompensable rating for varicose veins that are asymptomatic, palpable or visible. The next higher rating of 10 percent is warranted where the evidence demonstrates intermittent edema of an extremity or aching and fatigue in a leg after prolonged standing or walking, with symptoms relieved by elevation of the extremity or compression hosiery. 38 C.F.R. § 4.104. Clearly, the effect of the Veteran's left varicocele is confined to his testicle. However, by analogy, the Board has considered whether there is evidence that the varicocele results in swelling (edema) or aching. Such has not been shown. Consideration has also been given to whether a higher rating could be assigned under an alternate diagnostic code. Diagnostic Code 7523 pertains to atrophy of the testes. Under this diagnostic code, a compensable rating is warranted only upon a showing of complete atrophy of both testes (20 percent). 38 C.F.R. § 4.115b, Diagnostic Code 7523. The evidence shows that the Veteran's testes were normal on examination. Given that there has been no recurrence of the left varicocele and it has been asymptomatic, a preponderance of the evidence is against a compensable rating and since there is no reasonable doubt to be resolved in the Veteran's favor, the claim must be denied. 38 U.S.C. 5107 (b); see Gilbert, supra. Bilateral Flat Feet The Veteran's bilateral flat feet with hallux valgus and hammertoes is rated 10 percent disabling beginning on April 1, 2003 and 30 percent disabling beginning on May 18, 2016 under Diagnostic Code 5276. Under Diagnostic Code 5276 for pes planus, a 10 percent rating is assigned for moderate bilateral pes planus with a weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, and pain on manipulation and use of the feet. A 30 percent rating is assigned for severe bilateral pes planus with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated indication of swelling on use, and characteristic callosities. A 50 percent rating, the maximum rating available, is assigned when there is pronounced bilateral pes planus with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. See 38 C.F.R. § 4.71a. Under Diagnostic Code 5280 for unilateral hallux valgus, a 10 percent rating is warranted for severe hallux valgus if it is equivalent to amputation of the great toe or for postoperative hallux valgus with resection of the metatarsal head, which is the maximum rating that is allowed under this Diagnostic Code 38 C.F.R. § 4.71a. Diagnostic Code 5282 evaluates hammer toe and provides a 0 percent rating single toes and a 10 percent rating for all toes unilateral without claw feet. See 38 C.F.R. § 4.71a. A rating in excess of 10 percent is not warranted prior to January 4, 2011 since there is no evidence of severe pes planus. The January 2004 VA examination, revealed no evidence of marked deformity, swelling, Achilles tendon deviation, or pain on pressure and palpation, and the only callus was on a single hammertoe on the right foot. The Veteran also wore shoe inserts that worked well. See Medical Treatment record - Government Facility received in February 2004. On January 4, 2011, however, the disability picture more closely approximates the criteria for a 30 percent rating. At that time, the Veteran complained of frequent foot cramps, there was objective evidence of deformed pronated feet, and he had significant gait alterations and difficulty walking with chronic pain. The resting calcaneal stance position was everted with medial declination of the talo navicular joint. Gait was pronated and apropultive with limited resupination of the subtalar joint. The assessment was deformed, pronated foot and gait. The clinician also noted significant gait alterations and difficulty walking with chronic pain. See Medical Treatment Record - Non-Government Facility received in March 2011. The May 2016 VA examination also contained some complaints and findings consistent with a 30 percent rating. The Veteran had tenderness on bottom of feet which affected his gait, and sharp pain and cramping in his feet. During flare-ups he had severe pain on the bottom of his feet that made walking painful and interfered with his ability to walk. The examination revealed pain on manipulation and characteristic calluses. See VA Examination received in May 2016. At no time during the appeal were the criteria for a 50 percent rating met or approximated. The VA examinations and treatment records contained no evidence of marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasms of the tendo Achilles on manipulation. Although the May 2016 examination indicated orthotics were not helpful, the overall disability picture does not meet or approximate the criteria for a 50 percent rating. Separate ratings for hammertoes and hallux valgus are not warranted since examinations show that all of his toes were not hammertoes and his hallux valgus was not severe and equivalent to amputation of the great toe. While he had some symptoms in his great toes in 2011 they were asymptomatic in 2016. In light of the forgoing, a preponderance of the evidence is in favor of a 30 percent rating from January 4, 2011 to May 18, 2016, for all other periods pertinent to the appeal a preponderance of the evidence is against the claim. ORDER An initial rating in excess of 30 percent for a respiratory disability is denied. An initial rating of 30 percent for a right shoulder disability is granted, subject to the laws and regulations governing monetary awards. An initial compensable rating for left varicocele is denied. An initial rating in excess of 10 percent for a bilateral foot disability prior to January 4, 2011 is denied. An initial rating of 30 percent from January 4, 2011 to May 18, 2016 is granted, subject to the laws and regulations governing monetary awards. An initial rating in excess of 30 percent for a bilateral foot disability from May 18, 2016 is denied. REMAND There has not been compliance with the Board's September 2009 remand in that the Veteran was not provided an examination of the right inguinal hernia. The May 2016 VA examination report only makes reference to the Veteran's left inguinal hernia, which is not on appeal. Consequently, the matter must be remanded. The Veteran submitted a November 2015 hearing test in support of his claim that was conducted in Thailand. Although in Kelly v. Brown, 7 Vet. App. 471, 474 (1995), the Court stated that the Board could interpret a clear graphical audiogram, the Board does not find in this instance that the audiogram graph is clear enough to interpret. Thus, the matter must be remanded to obtain an interpretation of the audiogram graph. Also, the Veteran's initial VA examination in 2004 for hearing loss is in German and while the examination was translated the graph with the audiometry findings were not. Thus, they must be translated. See VA 21-2507a received in February 2004. Regarding the low back disability with bilateral lower extremity radiculopathy, the criteria for rating these disabilities changed effective on September 26, 2003. The RO received the Veteran's claim on September 22, 2003 and the effective date established for the low back disability is April 1, 2003, which is the day after he separated from service. A revision to the schedular criteria for evaluating disabilities of the spine became effective on September 26, 2003. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); VAOPGCPREC 3-2000; VAOPGCPREC 7-2003. Amendments with a specified effective date without provision for retroactive application may not be applied prior to the effective date. As of that effective date, the Board must apply whichever version of the rating criteria is more favorable to the Veteran. In the present case, the RO rated the back disability based only on the revised criteria that became effective September 26, 2003 even though the effective date for the disability dated back to April 1, 2003, when only the former version was in effect. Furthermore, the Veteran was never notified of the former version of the criteria. Since the RO applied the wrong version of the criteria for the period prior to September 26, 2003, the issue must be remanded. The Board also notes that the bilateral lower extremity ratings are intertwined since the former criteria contemplate neurological symptoms with the orthopedic symptoms. Accordingly, this matter is hereby REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to determine the severity of his right inguinal hernia. The Veteran's file should be made available to the examiner for review. The examiner should set forth the current manifestations and severity of the Veteran's service-connected right inguinal hernia. The clinician should address whether it is postoperative recurrent inguinal hernia that is readily reducible and well supported by truss or belt, or small; postoperative recurrent or not operated irremediable, inguinal hernia that is not well supported by truss, or not readily reducible. 2. Have a VA audiologist interpret the private audiogram graph from November 2015. 3. Obtain a translation of the January 2004 VA audiometry for hearing loss. 4. Notify the Veteran of the rating criteria in effect prior to September 26, 2003 for orthopedic and neurological manifestations of low back disabilities. 5. Thereafter, readjudicate these issues in light of this and all other additional evidence, and specifically consider the low back and bilateral lower extremity radiculopathy disabilities in light of the version of the criteria that was in effect prior to September 26, 2003. If any of these issues remain denied, or are not granted to the Veteran's satisfaction, send him and his representative a Supplemental Statement of the Case (SSOC), and give them time to respond before returning the file to the Board for further appellate consideration of the claim. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ____________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs