Citation Nr: 21001425 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 08-16 440 DATE: January 8, 2021 ORDER Entitlement to service connection for dental treatment purposes is granted. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for trace nuclear sclerosis of the bilateral eye lenses is denied. Entitlement to service connection for stress fracture of first, left metatarsal is denied. Entitlement to an initial compensable disability rating for myofascial pain dysfunction syndrome, claimed as chronic jaw pain, temporomandibular joint dysfunction and/or right jaw joint, is denied. Entitlement to an initial disability rating in excess of 10 percent for a soft tissue strain of the first ray, right hand, is denied. Entitlement to a 10 percent disability rating for a soft tissue strain of the first ray, left hand, is granted. Entitlement to an initial disability rating in excess of 10 percent for a left rotator cuff disability is denied. Entitlement to an initial disability rating in excess of 10 percent for thoracolumbar spondylosis, prior to August 4, 2016, is denied. Entitlement to a 40 percent disability rating, but not higher, for thoracolumbar spondylosis, as of August 4, 2016, is granted. REMANDED Entitlement to service connection for nasal septum deviation is remanded. FINDINGS OF FACT 1. The Veteran’s current dental condition was caused or aggravated by his service-connected myofascial pain syndrome dysfunction. 2. The preponderance of the evidence does not establish bilateral hearing loss for VA purposes. 3. The preponderance of the evidence does not establish a current bilateral eye disability. 4. The preponderance of the evidence does not establish a stress fracture of the first, left metatarsal. 5. The Veteran’s myofascial pain dysfunction syndrome does not manifest in range of motion of lateral excursion limited from 0 to 4 mm or the inter-incisal range of motion limited to 31 to 40 mm. 6. The Veteran’s soft tissue strain of the first ray of each hand does not manifest in a gap of more than two inches (5.1 cm) between the thumb and fingers, with the thumb attempting to oppose the fingers. 7. The Veteran’s left rotator cuff disability does not manifest in limitation of motion to the shoulder level, or 90 degrees. 8. Prior to August 4, 2016, the Veteran’s thoracolumbar spondylosis manifested forward flexion, at worst, to 90 degrees, without muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 9. As of August 4, 2016, the Veteran’s thoracolumbar spondylosis manifested in forward flexion, at worst, to 20 degrees, without unfavorable ankylosis of the thoracolumbar spine. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for dental treatment purposes have been met 38 U.S.C. § 1110, 5103A, 5107 (2018); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2019). 2. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1137, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2019). 3. The criteria for entitlement to service connection for trace nuclear sclerosis of the bilateral eye lenses have not been met. 38 U.S.C. § 1110, 5103A, 5107 (2018); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2019). 4. The criteria for entitlement to service connection for stress fracture of the left, first metatarsal have not been met. 38 U.S.C. § 1110, 5103A, 5107 (2018); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2019). 5. The criteria for an initial compensable disability rating for myofascial pain syndrome dysfunction have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.59, 4.7, 4.150, Diagnostic Code 9905 (2019). 6. The criteria for an initial disability rating in excess of 10 percent for a soft tissue strain of the first ray of the right hand have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.59, 4.7, 4.71a, Diagnostic Code 5010-5228 (2019). 7. The criteria for a 10 percent disability rating for a soft tissue strain of the first ray of the left hand have been met, effective July 1, 2006. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.59, 4.7, 4.71a, Diagnostic Code 5010-5228 (2019). 8. The criteria for an initial disability rating in excess of 10 percent for a left rotator cuff disability have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.59, 4.7, 4.71a, Diagnostic Code 5299-5203 (2019). 9. Prior to December 4, 2016, the criteria for an initial disability rating in excess of 10 percent for a thoracolumbar spondylosis have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.59, 4.7, 4.71a, Diagnostic Code 5237 (2019). 10. As of December 4, 2016, the criteria for a disability rating of 40 percent, but no higher, for a thoracolumbar spondylosis have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.59, 4.7, 4.71a, Diagnostic Code 5237 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Air Force from March 1969 to March 1973, July 1978 to August 1979, November 1989 to June 1990, April 1991 to January 1992, May 1995 to September 1995, and again from October 1997 to June 2006. This matter was previously before the Board in November 2011 and June 2017 but was remanded for further development. In November 2011, the claim was remanded to the Veteran could be provided with appropriate notice regarding his dental claim. This was not done. However, the claim is being granted so there is no prejudice to the Veteran. In June 2017, the Veteran’s appeal was returned to the Agency of Original Jurisdiction (AOJ) with instructions to attempt to obtain and associate missing records from his claims file. Additional documents were associated with the claims file in June 2020. Further, the VA sent correspondence to the Veteran in July 2020 specifically listing documents missing from the claims file and requesting the Veteran send any copies of those documents. The Veteran did not respond to the July 2020 correspondence. Accordingly, the Board finds there has been substantial compliance with the remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In addition, where a veteran asserts entitlement to a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When a chronic disease manifests to a degree of 10 percent or more within 1 year from the date of separation from service, that disease is presumptively service-connected. 38 C.F.R. §§ 3.303 (b), 3.307(a)(3). The Veteran's claimed bilateral sensorineural hearing loss is a chronic disease as defined by 38 C.F.R. § 3.309(a). When a disease is first diagnosed after service, service connection is warranted for that condition if the competent evidence shows it was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for dental treatment purposes, to include as secondary for myofascial pain dysfunction syndrome The dental conditions for which service-connected compensation benefits are available are set forth under 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. The regulations governing dental claims make a fundamental distinction between “replaceable missing teeth,” and teeth lost as a result of loss of substance of body of maxilla or mandible due to trauma or disease such as osteomyelitis, and not loss of the alveolar process as a result of periodontal disease. See 38 C.F.R. §§ 3.381, 4.150; Simington v. West, 11 Vet. App. 41, 44 (1998). Absent a demonstration of dental trauma, service connection may be considered solely for the purpose of determining entitlement to dental examinations or outpatient dental treatment. See also Woodson v. Brown, 8 Vet. App. 352, 354 (1995). A claim for service connection for a dental disorder is also a claim for VA outpatient dental treatment. Mays v. Brown, 5 Vet. App. 302 (1993). Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease will be considered service connected solely for the purpose of establishing eligibility for outpatient dental treatment as provided in 38 C.F.R. § 17.161. 38 C.F.R. § 3.381. The Veteran claims entitlement to service connection for dental treatment purposes, to include as secondary to service-connected myofascial pain. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran was service connected and assigned a noncompensable disability rating for myofascial pain dysfunction syndrome, effective July 1, 2006, in a May 2007 Rating Decision. The grant of service connection was based on a December 2006 VA dentistry examination noting that the Veteran developed jaw clenching and bruxing with myalgia and arthralgia during his period of active service. A May 2015 VA addendum medical opinion following a February 2015 temporomandibular joint conditions DBQ notes that, “[a]t [Fort] Riley [Veteran] had 22 PFM crown on his dentition. I suspect this was related to dental attrition from bruxing.” Based on the probative medical evidence of record, the Board finds that it is at least as likely as not that the Veteran’s current dental disability was caused by his service-connected myofascial pain syndrome dysfunction. Accordingly, entitlement to service connection for dental treatment purposes is warranted. 2. Entitlement to service connection for bilateral hearing loss The Veteran contends that his claimed bilateral hearing loss was incurred during his period of active duty service. The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). However, to establish a current hearing loss disability for VA purposes, hearing examination results must meet the standards of 38 C.F.R. § 3.385. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Hearing loss for the purpose of VA disability compensation is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In this case, the Board finds service connection is not warranted because a hearing loss disability is not present. The Veteran’s bilateral sensorineural hearing was evaluated in multiple hearing examinations. An August 2016 hearing loss and tinnitus Disability Benefits Questionnaire (DBQ) showed puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 15 15 25 LEFT 15 15 15 20 20 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear. The private examiner specified that the Maryland CNC word list was used. A private medical audiology examination submitted in August 2016 VA showed puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 8 10 15 10 30 LEFT 10 8 10 20 20 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 100 percent in the left ear, using the Maryland CNC word list. A February 2008 VA audiology examination showed puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 10 15 10 LEFT 5 10 10 5 10 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear, using the Maryland CNC word list. Finally, A December 2006 VA audiology examination showed puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 10 15 15 LEFT 5 10 10 5 20 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear, using the Maryland CNC word list. Based on the probative medical evidence discussed above, the Board finds that the Veteran did not have bilateral hearing loss for VA purposes. The Veteran’s bilateral hearing loss does not manifest in hearing loss of 40 decibels or greater at any frequency; or auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test that are less than 94 percent. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, entitlement to service connection for bilateral hearing loss is not warranted. The Board concludes that the preponderance of the evidence is against the claim for service connection for bilateral hearing loss. The benefit of the doubt rule therefore does not apply, and service connection for this disability is not warranted. 3. Entitlement to service connection for trace nuclear sclerosis of the bilateral eye lenses The Veteran claims entitlement to service connection trace nuclear sclerosis of the bilateral eye lenses (bilateral eye disabilities). The Veteran contends that his claimed bilateral eye disabilities were incurred during or caused by his period of active service. The Veteran’s service treatment records note an eye injury in May 1990 and various treatment for eye issues to include itching or redness during the Veteran’s period of active service. However, at present the medical evidence of record does not establish current bilateral eye disabilities. A February 2007 VA eye examination, the examiner noted that the Veteran reported no active eye disease, but instead had been told he “might have the beginnings” of cataracts and a “very slight” blepharitis. The examiner diagnosed the Veteran with trace nuclear sclerosis of the lens of each eye “of no clinical significance” and “very mild” blepharitis of the eyelashes. However, the VA examiner specifically noted: The opinion was requested as to whether or not this [Veteran] has any significant eye disease and the answer is no he does not. He has the slightest trace of nuclear sclerosis of the lens of each eye which is of no clinical significance. He has extremely mild blepharitis easily controlled with baby shampoo. At present, the probative medical evidence of record does not contain any contradicting VA or private medical evidence, diagnosis, or opinion regarding a diagnosis of bilateral eye disabilities. Based on the probative medical evidence of record, the Board finds that the Veteran does not have current bilateral eye disabilities. The Veteran has not demonstrated that he has eye symptoms that cause functional impact of earning capacity. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, entitlement to service connection for bilateral eye disabilities is not warranted. The Board concludes that the preponderance of the evidence is against the claim for service connection for bilateral eye disabilities. The benefit of the doubt rule therefore does not apply, and service connection for this disability is not warranted. 4. Entitlement to service connection for stress fracture of left, first metatarsal The Veteran claims entitlement to service connection for stress fracture of left, first metatarsal. In his September 2007 Notice of Disagreement (NOD), he asserted that it was due to running on a road during routine fitness training in the summer of 2000, while stationed at McConnell Air Force Base. An October 1990 service treatment record notes left foot pain, and a diagnosis of a left foot strain. The Veteran’s service treatment records are silent for a diagnosis of a stress fracture of the first, left metatarsal. Even assuming that he hurt his foot while running in the summer of 2000, the probative medical evidence of record does not show symptoms of residuals of a fracture of the first left metatarsal. Furthermore, the Veteran has not described his symptoms. In his NOD, he only states that an injury occurred but did not describe any current symptoms. A medical opinion or evidence establishing that the Veteran had a stress fracture of the first, left metatarsal or symptoms from its residuals is not of record. He has not provided lay descriptions of left metatarsal or foot symptoms that cause functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). At present, the probative evidence of record does not establish a stress fracture of the left, first metatarsal. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board concludes that the preponderance of the evidence is against the claim for service connection for stress fracture of the left, first metatarsal. The benefit of the doubt rule therefore does not apply, and service connection for this disability is not warranted. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Ratings are assigned based on the average impairment of earning capacity resulting from a service-connected disability. 38 C.F.R. § 4.1. Where two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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). 1. Entitlement to a compensable disability rating for myofascial pain dysfunction syndrome The Veteran was granted service connection and assigned a noncompensable disability rating for myofascial pain dysfunction (jaw disability) in a May 2007 Rating Decision, effective July 1, 2006. The Veteran contends that his jaw disability is more severe than currently evaluated. The Veteran’s jaw disability was evaluated in Diagnostic Code 9999-9905. Myofascial pain syndrome does not have a specific diagnostic code in the rating schedule. When a Veteran is diagnosed with an unlisted condition, it must be rated under an analogous diagnostic code. 38 C.F.R. §§ 4.20, 4.27. The diagnostic code is "built-up" by assigning the first two digits from that part of the schedule most closely identifying the part of the body involved and then assigning "99" for the last two digits for all unlisted conditions. Then, the disease is rated by analogy under a diagnostic code for a closely related disease that affects the same anatomical functions and has closely analogous symptomatology. Therefore, the Veteran's service-connected myofascial pain syndrome was rated according to the analogous condition of TMJ under Diagnostic Code 9905. Under Diagnostic Code 9905, a 10 percent rating is warranted when the range of lateral excursion is limited from 0 to 4 millimeters (mm) or the inter-incisal range is limited to 31 to 40 mm; a 20 percent evaluation is applicable when the inter-incisal range is limited to 21 to 30 mm; a 30 percent rating is for contemplation when the inter-incisal range is limited to 11 to 20 mm; and a 40 percent rating is assigned when the inter-incisal range is limited to 0 to 10 mm. 38 C.F.R. § 4.150, Diagnostic Code 9905. A December 2006 VA dentistry operative notes a diagnosis of myofascial pain dysfunction syndrome. The dentistry note reported that the Veteran’s inter-incisal range of motion was 0-50 mm, and lateral excursion of 8 mm. The Veteran’s jaw disability was evaluated in a June 2012 TMJ Conditions examination. At examination, the Veteran was diagnosed with myofascial pain syndrome. The Veteran denied flare-ups of his jaw disability. He exhibited range of motion of greater than 4 mm for lateral excursion, with no evidence of pain on motion; greater than 40 mm range of motion for opening mouth, with objective evidence of pain at greater than 40 mm. There was no increased range of motion limitation or functional loss following repetitive testing. The Veteran did not have pain on palpitation of joint or soft tissue. The examiner noted that the Veteran did not demonstrate clicking or crepitation of joints or soft tissue. There was no evidence of degenerative arthritis or traumatic arthritis on x-ray. The Veteran’s jaw disability did not impact his ability to work. The Veteran’s jaw disability was evaluated again in a February 2015 TMJ examination. At examination, the Veteran was diagnosed with myofascial pain syndrome. The Veteran denied flare-ups of his jaw disability. Initial range of motion testing demonstrated right lateral excursion to 12 mm, with no evidence of pain on chewing. Inter-incisal distance measured 53 mm. The Veteran’s left lateral excursion range of motion measured 12 mm, with no objective evidence of pain on chewing. There was no increased range of motion limitation or functional loss following repetitive testing. The Veteran did not have tenderness or pain on palpitation. There was no evidence of degenerative arthritis or traumatic arthritis on x-ray. The Veteran’s jaw disability did not impact his ability to work. Based on the above discussed medical evidence, the Board finds that the Veteran’s jaw disability does not manifest to a compensable degree. The Veteran does not exhibit range of motion of lateral excursion limited from 0 to 4 mm or the inter-incisal range of motion limited to 31 to 40 mm. The Board acknowledges the Veteran’s statements that his jaw disability is more severe than evaluated. The Veteran is competent to report his symptoms and has presented credible statements in this regard. Layno, 6 Vet. App. at 469. The Board finds, however, that neither the Veteran’s statements nor medical evidence demonstrates that the criteria for a compensable disability evaluation. The Board also acknowledges that the Veteran’s VA treatment and private medical records note complaints of and treatment for a jaw disability. However, these records do not address the specific rating criteria necessary to determine severity. In determining the actual degree of disability, the examination findings are more probative of the degree of impairment. The February 2015 TMJ examination report is the most recent examination of record. However, the mere passage of time does not render an old examination inadequate. Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007). Reexaminations are required if the evidence indicates that there has been a material change in a disability or that the current rating is incorrect. See 38 C.F.R. § 3.327. Here, the evidence does not suggest a worsening of the Veteran’s jaw disability since the February 2015 examination. Objective medical evidence does not document reported worsening of the Veteran’s jaw disability. Furthermore, neither the Veteran nor his representative has not made any statements that his jaw disability has worsened since the February 2015 examination. To the extent that the Board herein denies a higher rating, the preponderance of the evidence is against such an award. Therefore, the benefit of the doubt doctrine is not applicable in such regard, and higher ratings are not warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a disability rating in excess of 10 percent for a soft tissue strain of the first ray, bilateral hands The Veteran was granted service connection and assigned a 10 percent disability rating for soft tissue strain of the first ray, bilateral hands (bilateral hand disabilities), in a May 2007 Rating Decision, effective July 1, 2006. The Veteran contends that his hand disability is more severe than currently evaluated. As a preliminary matter, the Veteran’s bilateral hand disabilities were evaluated under Diagnostic Code 5010-5228. 38 C.F.R. § 4.71a. They were assigned a single 10 percent rating. Under Diagnostic Code 5228, a noncompensable disability evaluation is assigned for limitation of motion of the thumb with a gap of less than one inch (2.5 cm) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A 10 percent disability evaluation is assigned for a gap of one to two inches (2.5 to 5.1 cm) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A 20 percent disability evaluation is assigned for a gap of more than two inches (5.1 cm) between the thumb and fingers, with the thumb attempting to oppose the fingers. 38 C.F.R. § 4.71a. Nothing in the rating criteria states that a bilateral disability may be assigned a single rating. Correct application of the regulation requires that each hand be rated separately. To correct this, the Board separates the single rating into two: a current 10 percent rating for the right hand, and a separate 10 percent rating for the Veteran’s soft tissue strain of the first ray of the left hand is granted, effective July 1, 2006, the same date as the initial rating assigned for the bilateral hand disability. A December 2006 hand examination completed by a private medical physician noted a diagnosis of soft issue chronic strains of the first rays of both hands. The Veteran denied flare-ups but reported that his daily activities were affected in that he finds it difficult to twist caps or lift weights. Physical examination of each thumb demonstrated MCP range of motion from 0 to 90 degrees, with objective evidence of pain; DIP range of motion from 0 to 70 degrees, without objective evidence of pain bilaterally. The Veteran was able to grab, push, pull, twist, touch, and probe with both hands. He was able to oppose thumb to fingertips with both hands and make a fist and bring his fingertips to the palmar crease bilaterally. An April 2009 hand examination completed by a private medical physician noted a diagnosis of soft issue chronic strains of the first rays of both hands. The Veteran denied flare-ups but reported difficulty picking up objects and grabbing objects, particularly with his right hand. Physical examination of each thumb demonstrated MCP range of motion from 0 to 90 degrees, without objective evidence of pain; DIP range of motion from 0 to 70 degrees, without objective evidence of pain bilaterally. The Veteran was able to grab, push, pull, twist, touch, and probe with both hands. The Veteran did report some soreness when moving his thumbs. He was able to oppose thumb to fingertips with both hands, and make a fist and bring his fingertips to the palmar crease bilaterally The Veteran’s hand disabilities were more recently evaluated in an August 2016 Hand and Finger Conditions examination. At examination, the Veteran was diagnosed with soft tissue strain of the first ray, bilateral hands. The Veteran reported an injury to his hands during active service in 1997 with worsening pain ever since. The Veteran reported flare-ups, noting worsening pain when using his thumbs. At examination, the Veteran’s index finger, long finger, ring finger, and little finger had normal range of motion. The Veteran’s thumb had max MCP flexion to 40 degrees and max IP flexion to 60 degrees. There was no gap between the pad of the thumb and the fingers. There was also no gap between the finger and proximal transverse crease of the hand on maximal finger flexion. The Veteran noted pain on finger flexion causing functional loss. There was no evidence of localized pain or tenderness on palpation of the joint or associated soft tissue. There was no additional functional loss after repetitive use testing. The Veteran was not examined during a flare-up and was unable to replicate limitation of range of motion during a flare-up. His muscle strength was normal and there was no evidence of muscle atrophy or ankylosis. The Veteran did not require use of an assistive device or manifest in functional loss affecting his ability to work. Based on the medical evidence of record, the Board finds that a disability rating in excess of 10 percent is not warranted either the right or left hand. Examinations of both hands completed in December 2006, April 2009, and August 2016 do not report a gap of more than two inches (5.1 cm) between the thumb and fingers, with the thumb attempting to oppose the fingers. See 38 C.F.R. § 4.71a, Diagnostic Code 5228. Conversely, each examination notes that the Veteran is able to ouch his thumb and other fingers. The Board acknowledges the Veteran’s statements that his bilateral hand disabilities are more severe than evaluated. The Veteran is competent to report his symptoms and has presented credible statements in this regard. Layno, 6 Vet. App. at 469. The Board finds, however, that neither the Veteran’s statements nor medical evidence demonstrates that the criteria for a disability rating in excess of 10 percent. The Board also acknowledges that the Veteran’s VA treatment and private medical records note complaints of and treatment for bilateral hand disabilities. However, these records do not address the specific rating criteria necessary to determine severity. In determining the actual degree of disability, the examination findings are more probative of the degree of impairment. The Board recognizes that the August 2016 hand and finger DBQ is the most recent examination of record. However, the mere passage of time does not render an old examination inadequate. Palczewski, 21 Vet. App. at 182. Reexaminations are required if the evidence indicates that there has been a material change in a disability or that the current rating is incorrect. See 38 C.F.R. § 3.327. Here, the evidence does not suggest a worsening of the Veteran’s bilateral hand disabilities since the August 2016 examination. Objective medical evidence does not document reported worsening of the Veteran’s bilateral hand disabilities. Furthermore, neither the Veteran nor his representative has not made any statements that his bilateral hand disabilities have worsened since the August 2016 examination. In summary, the Veteran’s bilateral hand disability was erroneously assigned a single rating. Therefore, a rating higher than 10 percent for soft tissue strain of the first ray of the right hand is denied. However, a separate 10 percent disability rating, but no higher, for soft tissue strain of the first ray of the left hand is granted. To the extent that the Board herein denies a higher rating, the preponderance of the evidence is against such an award. Therefore, the benefit of the doubt doctrine is not applicable in such regard, and higher ratings are not warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to a disability rating in excess of 10 percent for a left rotator cuff disability The Veteran was granted service connection and assigned a 10 percent disability rating, effective July 1, 2006, in a March 2008 rating decision. The Veteran’s left rotator cuff disability was evaluated under Diagnostic Code 5299-5203. Shoulder disabilities are rated under Codes 5200 to 5203. Under DC 5201 for limitation of motion of the minor arm, a 20 percent rating is assigned for limitation of motion shoulder level. A 30 percent rating is assigned for arm limitation of motion to 25 degrees from the minor side. Normal range of motion in the shoulder is from 0 to 180 degrees of forward elevation (flexion) and 0 to 180 degrees of shoulder abduction. See 38 C.F.R. § 4.71 (a), Plate I. The Veteran’s left shoulder disability is rated under Diagnostic Code 5299-5203. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Here, the use of Diagnostic Code 5299-5203 reflects that there is no diagnostic code specifically applicable to the Veteran’s service-connected right shoulder impingement syndrome, and that this disability has been rated by analogy to impairment of the clavicle or scapula under DC 5203. See 38 C.F.R. § 4.20 (allowing for rating of unlisted condition by analogy to closely related disease or injury). Under Diagnostic Code 5203, the following ratings apply for the minor extremity: a 10 percent rating is warranted for malunion or nonunion without loose movement and a 20 percent rating is warranted for dislocation of the joint, or nonunion with loose movement. 38 C.F.R. § 4.71a, Diagnostic Code 5203. The maximum schedular rating for a disability under Diagnostic Code 5203 is 20 percent. Id. The Veteran’s left rotator cuff disability was evaluated in numerous examinations during the appeal period. An August 2016 shoulder and arms examination noted left shoulder flexion to 170 degrees, abduction to 160 degrees, left internal rotation to 90 degrees, and left external rotation to 90 degrees. There was objective evidence of pain on movement. The DBQ noted there were no episodes of dislocation or ankylosis. Additionally, there has been no evidence of impairment of the humerus, or nonunion or dislocation of the clavicle or scapula. An April 2009 shoulder examination noted left shoulder flexion to 180 degrees, abduction to 180 degrees, left internal rotation to 90 degrees, and left external rotation to 90 degrees. There was objective evidence of pain on movement. The Veteran denied flare-ups. No ankylosis, impairment of the humerus, or nonunion or dislocation of the clavicle or scapula was noted. A December 2006 shoulder also examination noted left shoulder flexion to 180 degrees, abduction to 180 degrees, left internal rotation to 90 degrees, and left external rotation to 90 degrees. The Veteran denied flare-ups. No ankylosis, impairment of the humerus, or nonunion or dislocation of the clavicle or scapula was noted. In addition to these examinations, the claims file is filled with both VA and private treatment records. However, a review of such records reveals no additional relevant evidence regarding the Veteran’s shoulder condition. As noted above, the requirement for a rating in excess of 10 percent based on limitation of motion of the arm of the minor extremity without evidence of ankylosis, impairment of the humerus, or impairment of the clavicle or scapula (i.e., a 20 percent rating) requires limitation of motion to the shoulder level, or 90 degrees. See 38 C.F.R. § 4.71(a), Diagnostic Code 5201. As described above, no such evidence has been provided to show that the Veteran’s objective range-of-motion is so diminished; in fact, the Veteran’s flexion at its worse has been only limited to 170 degrees, as noted during the August 2016 shoulder and arm conditions DBQ. Such limitation does not warrant a higher, 20 percent rating. In addition, the probative evidence of record does not establish the required criteria of dislocation of the joint, or nonunion with loose movement as necessary for a 20 percent evaluation under Diagnostic Code 5203. See 38 C.F.R. § 4.71a. The Board acknowledges the Veteran’s statements that his left rotator cuff disability is more severe than evaluated. The Veteran is competent to report his symptoms and has presented credible statements in this regard. Layno, 6 Vet. App. at 469. The Board finds, however, that neither the Veteran’s statements nor medical evidence demonstrates that the criteria for a disability rating in excess of 10 percent. The Board also acknowledges that the Veteran’s VA treatment and private medical records note complaints of and treatment for a left rotator cuff disability. However, these records do not address the specific rating criteria necessary to determine severity. In determining the actual degree of disability, the examination findings are more probative of the degree of impairment. In light of the above findings, the Board finds that the preponderance of the evidence is against assigning a rating higher than 10 percent for the Veteran’s service-connected left rotator cuff disability. As such, the Veteran’s claim for a higher rating must be denied. The Board recognizes that the August 2016 shoulder and arm examination is the most recent examination of record. However, the mere passage of time does not render an old examination inadequate. Palczewski, 21 Vet. App. at 182. Reexaminations are required if the evidence indicates that there has been a material change in a disability or that the current rating is incorrect. See 38 C.F.R. § 3.327. Here, the evidence does not suggest a worsening of the Veteran’s left rotator cuff disability since the August 2016 examination. Objective medical evidence does not document reported worsening of the Veteran’s left rotator cuff. Furthermore, neither the Veteran nor his representative has made any statements that his left rotator cuff disability has worsened since the August 2016 examination. To the extent that the Board herein denies a higher rating, the preponderance of the evidence is against such an award. Therefore, the benefit of the doubt doctrine is not applicable in such regard, and higher ratings are not warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 4. Entitlement to a disability rating in excess of 10 percent for thoracolumbar spondylosis, prior to May 11, 2009, in excess of 20 percent thereafter. The Veteran was granted service connection and assigned a 10 percent disability for thoracolumbar spondylosis, prior to May 11, 2009, effective July 1, 2006, in a March 2008 rating decision. In September 2016 rating decision increased the Veteran’s thoracolumbar spondylosis disability rating to 20 percent. The Veteran’s thoracolumbar spine disability was evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5237. In accordance with Diagnostic Code 5237, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. Id. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent evaluation is assignable for forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. Id. 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. The probative evidence of record does not indicate other neurological abnormalities. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Intervertebral disc syndrome (preoperatively or postoperatively) is evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 (the combined rating table) separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 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. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1. There is no medical or lay evidence of record indicating the Veteran has ever had Intervertebral Disc Syndrome or incapacitating episodes due to his back disability. Therefore, the Formula for Rating Intervertebral Disc Syndrome does not apply. Entitlement to a disability rating in excess of 10 percent thoracolumbar spondylosis, prior to August 4, 2016 Prior to August 4, 2016, the Veteran’s thoracolumbar spondylosis disability was evaluated in two examinations. In a December 2006 spine examination, the Veteran exhibited forward flexion to 90 degrees without pain, extension to 30 degrees without pain, right and left lateral rotation to 30 degrees without pain, right and left lateral flexion to 30 degrees without pain. The Veteran had no tenderness in the lower lumbar spine. He had no spasm in any of the paraspinous muscles and none in the left trapezes. There were no additional limitations following repetitive use. The Veteran denied flare-ups and there is no effect of incoordination, fatigue, weakness, or lack of endurance on his spinal function. In an April 2009 spine examination, the Veteran exhibited forward flexion to 90 degrees with pain on motion, extension to 30 degrees with pain on motion, right and left lateral rotation to 30 degrees with pain on motion, right and left lateral flexion to 30 degrees without pain. The Veteran had no tenderness in the lower lumbar spine. He had no spasm in any of the paraspinous muscles and none in the left trapezes. There were no additional limitations following repetitive use. The Veteran denied flare-ups and there is no effect of incoordination, fatigue, weakness, or lack of endurance on his spinal function. The preponderance of the evidence shows that the Veteran’s thoracolumbar spine disability did not manifest in forward flexion greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis during the appeal period. Prior to August 4, 2016, his flexion was, at worst, 90 degrees. The Veteran’s range of motion was during this period was 240 degrees. The probative evidence of record does not establish muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Additionally, because he is able to move his spine, he does not have ankylosis. “Ankylosis” is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Entitlement to a disability rating in excess of 20 percent for thoracolumbar spondylosis, as of August 4, 2016 Most recently, the Veteran’s thoracolumbar spondylosis was evaluated in an August 2016 back conditions examination. At examination, the Veteran described throbbing pain and numbness in his lower back that increased with walking and lifting. The Veteran also reported difficulty bending over and squatting. He Veteran denied flare-ups. The Veteran demonstrated forward flexion of 30 degrees, extension of 20 degrees, left lateral flexion of 10, right lateral flexion of 15 degrees, left rotation of 15 degrees and right rotation of 15 degrees. The Veteran’s full range of motion was 105 degrees. There was no evidence of pain on weight bearing on non-weightbearing. There was additional loss of function or limitation of motion after repetitive use. After three repetitions, the Veteran demonstrated forward flexion to 20 degrees, extension to 10 degrees, left lateral flexion of 10, right lateral flexion of 10 degrees, left rotation of 10 degrees and right rotation of 10 degrees. During examination, the Veteran did not display symptoms of radiculopathy, muscle spasms, or guarding. The Veteran’s muscle strength and sensory testing was normal. His straight leg raise test was negative bilaterally. The examiner specifically found that he did not have radicular pain or any other signs or symptoms due to radiculopathy. There were no other neurologic abnormalities or findings related to the Veteran’s thoracolumbar spine disability. The Veteran did not have intervertebral disc syndrome or ankylosis. No assistive devices were required for ambulation. The examiner noted that the Veteran’s back disability made it difficult for him to lift objects or walk for periods of time due to the pain. Based on the probative medical evidence of record, the Board finds that a 40 percent disability rating is warranted for the Veteran’s thoracolumbar spondylosis disability. The Veteran’s thoracolumbar spondylosis manifest is forward flexion less than 30 degrees. A disability rating in excess of 40 percent is not warranted because the Veteran’s thoracolumbar spine does not manifest in unfavorable ankylosis of the entire thoracolumbar spine. Because the Veteran is able to move his spine, he does not have ankylosis. “Ankylosis” is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Entitlement to a disability rating of 50 percent disability rating for thoracolumbar spondylosis is warranted. REASONS FOR REMAND 1. Entitlement to service connection for developmental nasal septal deviation The Veteran claims entitlement to service connection for developmental nasal septal deviation. The Veteran’s VA treatment records confirm a current diagnosis of developmental septal deviation. In addition, the Veteran’s service treatment records contain complaints of and treatment for nasal issues such as excessive sneezing and rhinitis. At a VA March 2007 otolaryngology examination the Veteran was diagnosed with “nasal septum deviation with approximately 50 percent nasal obstruction on the right side and 10-20 percent [obstruction] on the left side.” The VA examiner noted the Veteran’s reported history of nasal obstruction on the right side. However, the VA examiner concluded: [N]asal septal deviation of this type occurs as a developmental situation during late childhood and adolescence, unless there is a history that nasal trauma has occurred. In this particular situation, the [V]eteran did not give a history that would suggest that any type of nasal trauma was incurred during any period of active duty service. The Board notes that for VA compensation purposes, congenital or developmental defects are not considered diseases or injuries. See 38 C.F.R. §§ 3.303(c), 4.9. Thus, in general, service connection may not be granted for congenital or developmental defects. See 38 C.F.R. § 3.303(c). However, under certain circumstances, service connection may be warranted for congenital or developmental diseases, as opposed to defects. See VAOPGCPREC 82-90; see also 38 C.F.R. § 3.306. Additionally, service connection may be granted for any additional disability that results where a congenital or developmental defect is subject to, or aggravated by, a superimposed disease or injury. See VAOPGCPREC 82-90. At present, a VA medical opinion discussing whether the Veteran’s deviated nasal septum is a congenital disease or defect, and if the Veteran’s deviated nasal septum existed prior to service and was aggravated by his period of active service is necessary to comprehensively evaluate the claim for service connection. The matters are REMANDED for the following action: 1. Provide the Veteran’s claims file to a suitable clinician to provide an opinion regarding his deviated nasal septum. The examiner must offer an opinion as to whether: a. Is the Veteran's deviated septum considered a congenital or developmental defect, or is it a congenital or hereditary disease? b. If the deviated septum is a congenital or developmental defect, was it subject to, or aggravated by, a superimposed disease or injury during service that resulted in additional disability? Please identify the additional disability. c. In contrast, if the deviated septum is a congenital or hereditary disease, please state whether the disease clearly and unmistakably preexisted the Veteran's entry into active service. d. If yes, is it clear and unmistakable the disease was not aggravated in service. e. If the deviated septum is not congenital or developmental in nature, or if it did not clearly and unmistakably preexist the Veteran's service, is it at least as likely as not (probability of 50 percent or more) that any such disorder had its onset in service or is otherwise etiologically related to any incident, disease, or injury during service? For VA purposes, a “defect” is defined as a structural or inherent abnormality or condition that is more or less stationary in nature and is generally incapable of improvement or deterioration. In contrast, a “disease” is capable of improvement or deterioration. The examiner must offer the opinion in the terms as listed above. The examiner must provide a complete rationale for his or her opinion(s) in the examination report. 2. Then, readjudicate the claim. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Riordan, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.