judge_norm: STEVEN D REISS

disposition: granted

condition: radiculopathy

condition: knee

disposition: remanded

text: This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).

text:
Citation Nr: 0910000
Decision Date: 03/18/09    Archive Date: 03/26/09

DOCKET NO.  05-34 343	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico

THE ISSUES

1.  Entitlement to an initial rating higher than 20 percent
for lumbar spine degenerative disc disease and degenerative
joint disease (low back disability).

2.  Entitlement to an initial rating higher than 10 percent
for right knee degenerative joint disease with iliotibial
band syndrome (right knee disability).

3.  Entitlement to an initial rating higher than 10 percent
for migraine headaches.

REPRESENTATION

Appellant represented by:	Vietnam Veterans of America

ATTORNEY FOR THE BOARD

R. Patner, Associate Counsel

INTRODUCTION

The Veteran served on active duty from April 1999 to August
2004.

This matter comes before the Board of Veterans' Appeals
(Board) from an October 2004 rating decision of a Department
of Veterans Affairs (VA) Regional Office (RO) that denied
service connection for migraine headaches and granted service
connection and awarded a 20 percent disability rating for a
low back disability and a 10 percent disability rating for a
right knee disability, effective September 1, 2004.  By an
August 2005 rating decision, the RO granted service
connection and awarded a 10 percent disability rating for
migraine headaches, effective September 1, 2004.  By an
October 2006 rating decision, the RO granted entitlement to a
temporary total disability rating based on convalescence
following a partial right knee meniscectomy for the period
from January 31, 2006, to February 28, 2006, after which time
a 10 percent rating became effective.

The issue of entitlement to an initial rating higher than 10
percent for migraine headaches is addressed in the REMAND
portion of the decision below and is REMANDED to the RO via
the Appeals Management Center in Washington, D.C.

FINDINGS OF FACT

1.  For the period from September 1, 2004 to March 25, 2007,
the Veteran's low back disability (degenerative disc disease
and degenerative joint disease with spondylosis,
spondylolisthesis, and lumbar disc herniation) had been
manifested by objective findings of muscle spasms and forward
flexion of the thoracolumbar spine to no less than 45
degrees, with pain at 40 degrees, and a combined range of
motion greater than 100 degrees.  Objective findings of
ankylosis and incapacitating episodes had not been shown.

2.  Since March 26, 2007, the Veteran's low back disability
(degenerative disc disease and degenerative joint disease
with spondylosis, spondylolisthesis, and lumbar disc
herniation) has been manifested by muscle spasms and
subjective complaints of constant pain, and objective
findings of muscle spasms forward flexion of the
thoracolumbar spine to 50 degrees, with pain at 30 degrees,
resulting disability comparable to limitation of flexion to
30 degrees; objective findings of ankylosis and
incapacitating episodes in the past 12 months have not been
shown.

3.  Since September 1, 2004, the Veteran's low back
disability has been productive of neurologic impairment of
the right lower extremity that results in disability
analogous to mild incomplete paralysis of the sciatic nerve.

4.  Since September 1, 2004, the Veteran's right knee
disability (status post arthroscopy and partial meniscectomy
with chondromalacia and degenerative joint disease) has been
manifested by subjective complaints of pain, stiffness,
swelling, locking, and giving way, and objective findings of
degenerative changes, extension limited to 0 degrees, flexion
limited at most to 112 degrees, crepitation, some instability
and tenderness to palpation.  There is no clinical evidence
of dislocation, effusion, ankylosis, or subluxation.

CONCLUSIONS OF LAW

1.  For the period from September 1, 2004, to March 25, 2007,
the criteria for a rating in excess of 20 percent for a low
back disability have not been met.  38 U.S.C.A. � 1155, 5107
(West 2002); 38 C.F.R. �� 3.321, 4.40, 4.45, 4.71a,
Diagnostic Codes (DCs) 5235-5243 (2008).

2.  Since March 26, 2007, the criteria for an increased
rating of 40 percent for a low back disability have been met.
38 U.S.C.A. � 1155, 5107 (West 2002); 38 C.F.R. �� 3.321,
4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5235-5243 (2008).

3.  Since September 1, 2004, the criteria for a rating of 10
percent for neurological manifestations of a lumbar spine
disability (mild incomplete paralysis of the sciatic nerve)
of the right lower extremity have been met.  38 U.S.C.A.
�� 1155, 5107(b) (West 2002); 38 C.F.R. �� 3.321(b), 4.71(a),
4.124(a), DC 8520 (2008).

4.  Since September 1, 2004, the effective date of service
connection, the criteria for a rating in excess of 10 percent
for a right knee disability have not been met.  38 U.S.C.A.
�� 1155, 5107 (West 2002); 38 C.F.R. � 3.102, 3.321, 4.71a,
Diagnostic Codes (DCs) 5256-5263 (2008).

5.  The criteria for a separate 10 percent rating for slight
instability of the right knee are met since September 1,
2004.  38 U.S.C.A. �� 1155, 5107 (West 2002); 38 C.F.R. ��
3.102, 3.321, 4.71a, Diagnostic Codes (DCs) 5256-5263 (2008).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Ratings for service-connected disabilities are determined by
comparing the veteran's symptoms with criteria listed in VA's
Schedule for Rating Disabilities, which is based, as far as
practically can be determined, on average impairment in
earning capacity.  Separate diagnostic codes identify the
various disabilities.  38 C.F.R. Part 4 (2008).  When rating
a service-connected disability, the entire history must be
borne in mind.  Schafrath v. Derwinski, 1 Vet. App. 589
(1991).  Where there is a question as to which of two ratings
shall be applied, 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 (2008).  The Board will
consider entitlement to staged ratings to compensate for
times since filing the claim when the disability may have
been more severe than at other times during the course of the
claim on appeal.  Fenderson v. West, 12 Vet. App. 119 (1999);
Hart v. Mansfield, 21 Vet. App. 505 (2007).

Disability of the musculoskeletal system is primarily the
inability, due to damage or infection in 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 upon 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 the visible
behavior of the claimant undertaking the motion.  Weakness is
as important as limitation of motion, and a part that becomes
painful on use must be regarded as seriously disabled.  A
little used part of the musculoskeletal system may be
expected to show evidence of disuse, either through atrophy,
the condition of the skin, absence of normal callosity or the
like.  38 C.F.R. � 4.40 (2008).

Evidence of pain, weakened movement, excess fatigability, or
incoordination must be considered in determining the level of
associated functional loss in light of 38 C.F.R. � 4.40,
taking into account any part of the musculoskeletal system
that becomes painful on use.  DeLuca v. Brown, 8 Vet. App.
202 (1995).  The provisions of regarding the avoidance of
pyramiding do not forbid consideration of a higher rating
based on greater limitation of motion due to pain on use,
including flare ups.  38 C.F.R. � 4.14 (2008).  However, the
provisions of 38 C.F.R. � 4.40 and 38 C.F.R. � 4.45 (2008),
should only be considered in conjunction with the diagnostic
codes predicated on limitation of motion.  Johnson v. Brown,
9 Vet. App. 7 (1996).

The intent of the rating schedule is to recognize painful
motion with joint or periarticular pathology as productive of
disability.  It is the intention to recognize actually
painful, unstable, or malaligned joints, due to healed
injury, as entitled to at least the minimum compensable
rating for the joint.  38 C.F.R. � 4.59 (2008).

With respect to the joints, the factors of disability reside
in reductions of their normal excursion of movements in
different planes.  Inquiry will be directed to these
considerations:  (a) less movement than normal (due to
ankylosis, limitation or blocking, adhesions, tendon-tie-up,
contracted scars, etc.); (b) more movement than normal (from
flail joint, resections, nonunion of fracture, relaxation of
ligaments, etc.); (c) weakened movement (due to muscle
injury, disease or injury of peripheral nerves, divided or
lengthened tendons, etc.); (d) excess fatigability;
(e) incoordination, impaired ability to execute skilled
movements smoothly; and (f) pain on movement, swelling,
deformity or atrophy of disuse.  Instability of station,
disturbance of locomotion, interference with sitting,
standing and weight-bearing are related considerations.  38
C.F.R. � 4.45.  For the purpose of rating disability from
arthritis, the spine is considered a major joint.  38 C.F.R.
� 4.45.

Arthritis shown by X-ray studies is rated based on limitation
of motion of the affected joint.  When limitation of motion
would be noncompensable under a limitation-of-motion code,
but there is at least some limitation of motion, a 10 percent
rating may be assigned for each major joint so affected.  38
C.F.R. � 4.71a, Diagnostic Codes (DCs) 5003, 5010.  For
traumatic arthritis, DC 5010 directs that the evaluation of
arthritis be conducted under DC 5003, which states that
degenerative arthritis established by X-ray findings will be
rated on the basis of limitation of motion under the
appropriate diagnostic codes for the specific joint or joints
involved.  38 C.F.R. � 4.71a, DC 5010.  When, however, the
limitation of motion is noncompensable under the appropriate
diagnostic codes, a rating of 10 percent may be applied to
each such major joint or group of minor joints affected by
limitation of motion.  The limitation of motion must be
objectively confirmed by findings such as swelling, muscle
spasm, or satisfactory evidence of painful motion.  38 C.F.R.
� 4.71a, DC 5010.  In the absence of limitation of motion, X-
ray evidence of arthritis involving two or more major joints
or two or more minor joint groups, will warrant a rating of
10 percent; in the absence of limitation of motion, X-ray
evidence of arthritis involving two or more major joint
groups with occasional incapacitating exacerbations will
warrant a 20 percent rating.  The above ratings are to be
combined, not added under DC 5003.  38 C.F.R. � 4.71a, DC
5003, Note 1.

The words slight, moderate, and severe as used in the various
diagnostic codes are not defined in the VA Schedule for
Rating Disabilities.  Rather than applying a mechanical
formula, the Board must evaluate all of the evidence, to the
end that its decisions are equitable and just.  38 C.F.R.
� 4.6 (2008).  It should also be noted that use of
terminology such as severe by VA examiners and others,
although an element to be considered by the Board, is not
dispositive of an issue.  All evidence must be evaluated in
arriving at a decision regarding an increased rating.
38 C.F.R. �� 4.2, 4.6 (2008).

A. Low Back

The Veteran's low back disability (degenerative disc disease
and degenerative joint disease with spondylosis,
spondylolisthesis, and lumbar disc herniation) has been rated
20 percent disabling under 5010-5237.  Hyphenated diagnostic
codes are used when a rating under one diagnostic code
requires the use of an additional diagnostic code to identify
the basis for the evaluation assigned; the additional code is
shown after the hyphen.  38 C.F.R. � 4.27 (2008).
Diagnostic Code 5010 pertains to traumatic arthritis.
38 C.F.R. � 4.71a, DC 5010.  Diagnostic Code 5237 pertains to
lumbosacral or cervical strain.  38 C.F.R. � 4.71a, General
Rating Formula for Diseases and Injuries of the Spine (2008),
38 C.F.R. � 4.71a, DC 5237.  Also applicable are DC 5238,
which pertains to spinal stenosis, DC 5239, which pertains to
spondylolisthesis or segmental instability, DC 5242, which
pertains to degenerative disc disease, and DC 5243, which
pertains to intervertebral disc syndrome.  38 C.F.R. � 4.71a,
DC 5238, 5239, 5242, 5243.

Diagnostic Codes 5010 and 5242, however, may not serve as a
basis for an increased rating in this case.  Diagnostic Code
5010 and Diagnostic Code 5242 direct that traumatic arthritis
of the spine and degenerative arthritis of the spine be
evaluated under DC 5003.  See 38 C.F.R. � 4.71a, DC 5243.
Diagnostic Code 5003 allows for the assignment of a 20
percent rating only where there is X-ray evidence of
arthritis of two or more major joints or two or more minor
joint groups.  The lumbar spine may only be rated as one
major joint.  38 C.F.R. � 4.45.  Regardless, the Veteran is
already in receipt of a 20 percent rating under a diagnostic
code that takes limitation of motion into consideration
(5237), and thus neither DC 5010 nor 5242 may serve as a
basis for an increased rating in this case. 38 C.F.R. �
4.71a, DC 5003, 5010, 5242.

It has not been contended or shown in this case that the
Veteran has residuals of a fracture of the vertebra (DC
5235), sacroiliac injury and weakness (5236), ankylosing
spondylitis (5240), or spinal fusion (5241).  Accordingly,
the diagnostic codes pertaining to these disabilities are not
applicable in this case.

The Board will first look to the General Rating Formula for
Diseases and Injuries of the Spine, which assigns a 10
percent rating if forward flexion of the thoracolumbar
spine is 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.

A 20 percent rating is assigned if forward flexion of the
thoracolumbar spine is 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.

A rating of 40 percent is warranted where there is forward
flexion of the thoracolumbar spine of 30 degrees or less.
A rating of 50 percent is warranted where there is
unfavorable ankylosis of the entire thoracolumbar spine.
38 C.F.R. � 4.71a, General Rating Formula for Diseases and
Injuries of the Spine (2008).

The Veteran filed a claim for service connection for a low
back disability in June 2004, two months prior to separating
from service.  He had had a medical board examination in
April 2004, and, in August 2004, he was determined to be
unfit for continued retention in the military.  At the April
2004 examination, he complained of low back pain that
interfered with his ability to perform his military duties,
including sit-ups, push-ups, heavy lifting, ruck sack
marching, bending, and running.  He reported, and the record
reflects, that he had attended physical therapy from January
to March 2004, but that physical therapy had not provided him
with prolonged relief.  Range of motion testing in April 2004
revealed forward flexion to 78 degrees, extension to 26
degrees, right lateral bending to 26 degrees, and left
lateral bending to 28 degrees, with no range of motion
testing for rotation.  The low back was found to be tender
and X-rays revealed L5-S1 bilateral spondylolisthesis with
Grade I spondylolisthesis and L5-S1 degenerative disc
disease.

On VA examination in August 2004, the Veteran reported that
he had noticed a gradual onset of back pain beginning in
2002, which may have been affected by eight parachute jumps
he completed in 2000.

Range of motion testing of the Veteran's lumbar spine
revealed active forward flexion to 50 degrees, active
extension to 13 degrees, active left lateral bending to 15,
active right lateral bending to 17 degrees, active left
rotation to 30 degrees with pain, and active right rotation
to 35 degrees.  Passive forward flexion was to 54 degrees,
passive extension was to 15 degrees, passive left lateral
bending was to 20 degrees, passive right lateral bending was
to 22 degrees, passive left rotation was to 33 degrees, and
passive right rotation was to 37 degrees.  Range of motion on
repetitive use testing revealed forward flexion to 50
degrees, with pain, extension to 12 degrees, with pain, left
lateral bending to 16 degrees, with pain, right lateral
bending to 14 degrees, with slight pain, left rotation to 31
degrees, and right rotation to 31 degrees with pain.
Physical examination revealed a normal posture and gait, with
no kyphosis or scoliosis.  Lordosis was present.  There was
mild paraspinous muscle spasm.  Palpation of the lumbar spine
was nontender.  Straight leg raising was negative.

VA treatment records from October 2004 to March 2005 reflect
that the Veteran complained of low back pain that sometime
radiated to his right knee.  On physical examination in March
2005, the lumbar area was tender to palpation.  The plan was
to start physical therapy.

On April 2005 VA examination, the Veteran reported that that
his low back pain had worsened, with sharp pain located at
the paravertebral muscles of the lumbosacral area.  He stated
that he took pain medication for relief.  He reported
experiencing flare-ups once or twice per week, which lasted
for two to three hours.  The Veteran did not use an assistive
device to ambulate nor did he use a back brace.  He stated
that he could usually walk for about 10 minutes.  He denied
episodes of weakness or falling.

Range of motion testing of the Veteran's lumbar spine
revealed forward flexion to 60 degrees with pain at 40
degrees, extension to 30 degrees, left and right lateral
bending to 10 degrees with pain, left and right rotation to
20 degrees, with pain at 10 degrees.  There was no
additional limitation in range of motion with repetitive
use.  Palpation over the spinous processes was tender,
accompanied by spasms with light touch.  There was no
ankylosis, lordosis, or scoliosis.  The assessment was
lumbar strain, myositis, and lumbar spondylolisthesis with
grade 1 spondylolisthesis.

In June 2006, the Veteran was determined to not meet the
medical requirements for employment as a police officer for
the Department of Veterans Affairs Caribbean Healthcare
System.

VA treatment records dated from January 2006 to March 2007
evidence treatment for low back problems.  In April 2006 the
Veteran reported that his low back pain worsened on exertion
and at night.  A treatment plan, including back stretches,
was demonstrated, as well as the use of a TENS unit.  In
October 2007, he reported that he had started using a
lumbosacral corset at work for pain relief, and found relief
using the TENS unit and taking prescribed pain medication.

On March 2007 VA examination, the Veteran reported that he
suffered from constant low back pain that radiated to his
legs.  The pain was described as shock-like and would last
from four to six hours.  He reported experiencing flare-ups
with a pain intensity of 9/10, at least three to six times
per month.  The pain was worse when standing or walking for a
prolonged period of time.  He reported that he could walk for
20 to 40 minutes, and did not use an assistive device or wear
a back brace.

Range of motion testing of the Veteran's lumbar spine
revealed forward flexion to 50 degrees with pain at 30
degrees, with pain, extension to 10 degrees, with pain,
left and right lateral bending to 10 degrees with pain,
left and right rotation to 10 degrees.  Forward flexion
revealed a functional loss of 40 due to pain, extension a
functional loss of 20 due to pain, and the right lateral
flexion and right lateral rotation were assessed to have a
functional loss of 20 due to pain.  Palpation over the
spinous processes was tender, accompanied by spasms to
light touch.  The Veteran had a normal gait.  There was no
kyphosis or ankylosis, but there was reversed lordosis.
The assessment was lumbar spine degenerative disc disease,
lumbar spondylosis, lumbar disc herniation, and lumbar
spondylolisthesis.

VA treatment records dated from April 2007 to October 2007
reflect continuing complaints of low back pain.  In April
2007 the Veteran complained of back pain that felt like a
7/10 constantly. On physical examination, there was no
edema, erythema, warmth, or visible masses.  There was no
asymmetry or deformity. On palpation, there was tenderness
to the right paraspinal muscles.  On range of motion
testing, there was a marked decrease in extension and
rotation.  Straight leg testing, Gaenslen's testing,
Patrick's testing, and Storks testing were negative.  There
was hamstring tightness.   Neurological testing was
negative, however, the Veteran was found to have L5-S1
neural foramina stenosis which could contribute to his
symptoms of pain.

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.  38 C.F.R. � 4.71a, General Rating Formula for
Diseases and Injuries of the Spine, Note 2.

The ranges of motion of the Veteran's lumbar spine for the
period from September 1, 2004, the effective date of service
connection, to March 25, 2007, as shown on VA examination in
August 2004 and April 2005, even when considering functional
loss and limitation of motion due to pain, fall at most
within the requirements for a 20 percent rating:  forward
flexion of the thoracolumbar spine greater than 30 degrees
but not greater than 60 degrees, or combined range of motion
of the thoracolumbar spine not greater than 120 degrees.
Limitation of flexion of the lumbar spine to 30 degrees or
less, or favorable ankylosis of the entire thoracolumbar
spine are not shown.  Thus, the evidence does not support a
higher rating under the General Rating Formula for Diseases
and Injuries of the Spine.

The ranges of motion of the Veteran's lumbar spine since
March 26, 2007, as shown on March 2007 VA examination,
evidence a worsening of the Veteran's low back condition and
instead fall within the requirements for a 40 percent rating:
forward flexion of the thoracolumbar spine 30 degrees or
less.  Although the Veteran could physically forward flex to
50 degrees, the examiner concluded that he experienced
functional loss beginning at 40 degrees, and that at 30
degrees, the Veteran complained of painful motion, which even
considering limitation of motion due to pain, reflects a
limitation of motion that more closely approximates forward
flexion to only 30 degrees.  Unfavorable ankylosis of the
entire thoracolumbar spine, however, has not been shown.
Thus, the evidence supports a rating of 40 percent, but not
more, under the General Rating Formula for Diseases and
Injuries of the Spine.

The Board next turns to the question of whether the Veteran
is entitled to an increased rating based upon the diagnostic
criteria pertaining to intervertebral disc syndrome (IDS).
IDS (pre-operatively or post-operatively) is to be evaluated
under the General Rating Formula for Diseases and Injuries of
the Spine or under the Formula for Rating Intervertebral Disc
Syndrome Based on Incapacitating Episodes, whichever method
results in the higher evaluation when all disabilities are
combined under �4.25.

Under the Formula for Rating Intervertebral Disc Syndrome
Based on Incapacitating Episodes, a rating of 40 percent is
warranted where there are incapacitating episodes having a
total duration of at least four weeks but less than six weeks
during the past 12 months.  A maximum rating of 60 percent is
warranted where the evidence reveals incapacitating episodes
having a total duration of at least six weeks during the past
12 months.  Incapacitating episodes are defined as requiring
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.

On VA examination in August 2004, the Veteran denied having
been hospitalized for his low back condition.  He completed
physical therapy, with limited results. While he had
difficulty performing his military duties, such as wearing
load bearing equipment and body armor, he was found to be
able to walk to an unlimited degree and ride his bicycle for
45 minutes at a time.  On VA examination in April 2005, the
Veteran reported that he experienced flare-ups of the low
back pain once or twice per week that lasted for an hour to
two hours, however, he denied being hospitalized or
prescribed bed rest by a physician in the previous year for
his low back condition.  On VA examination in March 2007, the
Veteran reported that he had not been hospitalized or been
prescribed bed rest by a physician in the previous year for
his low back condition. VA treatment records dated up to
October 2007 do not evidence any incapacitating episodes of
the low back, and the record otherwise does not demonstrate
that the Veteran was prescribed bed rest by a physician.
Accordingly, the Board finds that the Veteran is not entitled
to an increased rating based upon incapacitating episodes for
anytime since September 1, 2004, the effective date of
service connection.

As the Veteran is not entitled to an increased rating based
upon incapacitating episodes, it is necessary to determine
whether the Veteran is entitled to a higher rating based upon
his combined orthopedic and neurological manifestations.

Turning first to the orthopedic manifestations, the August
2004 VA examination range of motion testing of the Veteran's
lumbar spine revealed active forward flexion to 50 degrees,
active extension to 13 degrees, active right lateral bending
to 17 degrees, active left lateral bending to 15 degrees,
active right lateral rotation to 35 degrees and active left
lateral rotation up to 30 degrees.  Passive forward flexion
was to 54 degrees, passive extension was to 15 degrees,
passive left lateral bending was to 20 degrees, passive right
lateral bending was to 22 degrees, passive left rotation was
to 33 degrees, and passive right rotation was to 37 degrees.
On VA examination in April 2005, he had forward flexion to 60
degrees, with pain at 40 degrees, extension to 30 degrees,
right and left lateral bending to 10 degrees, with pain, and
right and left lateral rotation to 20 degrees, with pain at
10 degrees.  Those ranges of motion would warrant a rating of
20 percent under the general rating formula.  The
requirements for a higher rating under the general rating
formula, forward flexion of the thoracolumbar spine 30
degrees or less, or favorable ankylosis of the entire
thoracolumbar spine, are not shown.

On VA examination in March 2007, however, the Veteran's
lumbar spine revealed forward flexion to 50 degrees with pain
and functional loss at 30 degrees, extension to 10 degrees,
with pain, left and right lateral bending to 10 degrees with
pain, left and right rotation to 10 degrees.  Those ranges of
motion would warrant a rating of 40 percent under the general
rating formula.  The requirements for a higher rating under
the general rating formula, unfavorable ankylosis of the
entire thoracolumbar spine, are not shown.  Therefore, as
discussed above, based upon orthopedic manifestations, the
Veteran has met the criteria for a 40 percent rating since
March 26, 2007.

In rating peripheral nerve injuries and their residuals,
attention should be given to the site and character of the
injury, the relative impairment and motor function, trophic
changes, or sensory disturbances.  38 C.F.R. � 4.120 (2008).
Under 38 C.F.R. � 4.124a, disability from neurological
disorders is rated from 10 to 100 percent in proportion to
the impairment of motor, sensory, or mental function.  With
partial loss of use of one or more extremities from
neurological lesions, rating is to be by comparison with
mild, moderate, severe, or complete paralysis of the
peripheral nerves.  The term incomplete paralysis indicates a
degree of lost or impaired function substantially less than
the type of 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 only sensory, the rating should be
for the mild, or at most, the moderate degree.  In rating
peripheral nerve disability, neuritis, characterized by loss
of reflexes, muscle atrophy, sensory disturbances, and
constant pain, at times excruciating, is to be rated on the
scale provided for injury of the nerve involved, with a
maximum equal to severe, incomplete paralysis.  The maximum
rating to be assigned for neuritis not characterized by
organic changes referred to in this section will be that for
moderate incomplete paralysis, or with sciatic nerve
involvement, for moderately severe incomplete paralysis.
38 C.F.R. � 4.123 (2008).

Diagnostic Code 8520 provides the rating criteria for
paralysis of the sciatic nerve, and therefore neuritis and
neuralgia of that nerve.  Complete paralysis of the sciatic
nerve, which is rated as 80 percent disabling, contemplates
foot dangling and dropping, no active movement possible of
muscles below the knee, and flexion of the knee weakened or
(very rarely) lost.  Disability ratings of 10 percent, 20
percent and 40 percent are assignable for incomplete
paralysis which is mild, moderate or moderately severe in
degree, respectively.  A 60 percent rating is warranted for
severe incomplete paralysis with marked muscle atrophy.
38 C.F.R. � 4.124a, DC 8520.  Diagnostic Code 8620 refers to
neuritis of the sciatic nerve, and DC 8720 refers to
neuralgia of the sciatic nerve.

On VA examinations in April 2004 and August 2004, the Veteran
complained of constant back pain.  Neurological examination,
however, was assessed as normal.  There was no paresthesias
or weakness of the extremities.  In August 2004, the
neurovascular status of the lower extremities was intact.
Deep tendon reflexes of the lower extremities were 2+
bilaterally.  Musculoskeletal strength was 5/5.  The Veteran
was able to walk on his toes and heels.  In October 2004, the
Veteran sought treatment for his back pain at the VA.  At
that time, he complained of low back pain that radiated to
his right leg.  Physical examination revealed no clubbing
cyanosis or edema of the lower extremities.  The assessment
was low back pain with symptoms that were compatible with
radicular pain.  The plan was to take prescription pain
medication as needed.  In March 2005, the Veteran sought
treatment at the VA and complained that his low back pain was
localized, but sometimes radiated down to his right knee
which would go numb.  His right iliolumbar area and right
patellar region were tender to palpation.  There was no edema
or focal muscle atrophy.

On VA examination in April 2005, the Veteran again complained
of sharp and shock-like low back pain that was located at the
paravertabral muscles of the lumbosacral area.  His spine was
tender to palpation and repetitive flexion caused pain,
without evidence of lack of endurance or weakness.  His
senses were intact to pinprick examination.  Motor
examination was with normal tone, without atrophy.  His lower
extremity strength was 5/5 proximally and distally.  His deep
tendon reflexes were 2+ and symmetrical.  Straight leg
testing was negative, bilaterally.

In August 2006, the Veteran reported that the numbness and
pain in his right leg worsened after prolonged use.  The pain
in his right leg was constant, but was worse in the morning.

Due to his continued complaints of radiating pain and
numbness in his lower extremities, the Veteran underwent
monopolar needle sterile electromyography examination in
November 2006 for further inquiry.  There was normal
insertional activity without abnormal spontaneous activity at
all muscles tested.  The study was concluded as normal, with
no evidence of right L4/L5/S1 radiculopathy.

However, on March 2007 VA examination, the Veteran continued
to complain of radiating pain to his lower extremities,
lasting from 4 to 6 hours.  Despite his subjective sensory
complaints, his neurological examination was normal.  An
April 2007 VA treatment record reflects that, although the
Veteran tested negative for neurological involvement, he was
found to have L5-S1 neural foramina stenosis which could
contribute to his symptoms of neurological pain.

Here, the Veteran has continuously complained of sharp pain
that moves down his right leg, leaving his right leg numb.
On physical examination of his low back in October 2004, his
symptoms were concluded as compatible with right leg
radiculopathy.  Although the Veteran underwent a November
2006 electromyography which was negative for radiculopathy,
the Veteran has reported right leg pain, tingling, and
numbness in treatments records spanning from 2004 through
2006.  Therefore, the Board finds that the right lower
extremity sciatica symptoms are primarily sensory in nature
and compatible with an incomplete paralysis of the sciatic
nerve that is mild in degree.  Accordingly, the Board finds
that the Veteran's right lower extremity manifestations
result in mild residual impairment, warranting a separate 10
percent rating under DC 8520.  The Board finds no evidence of
organic changes, such as muscle atrophy, trophic changes,
etc., that would warrant a higher rating.  Additionally,
because the Veteran's testimony, which the Board has
determined to be both credible and competent, demonstrates
these symptoms to have persisted since the effective date of
service connection, the Board finds that the Veteran is
entitled to an increased rating of 10 percent since September
1, 2004, the effective date of service connection.  Layno v.
Brown, 6 Vet. App. 465 (1994) (layperson is competent to
report and describe the severity of symptoms that are capable
of lay observation).

The Board has determined that the Veteran is entitled to no
more than a 20 percent disability rating under any of the
spinal rating criteria applicable for the period from
September 1, 2004, to March 25, 2007, and a rating of 40
percent, but not more, under the spinal rating criteria since
March 26, 2007.  Consideration has been given to the
provisions of 38 C.F.R. �� 4.40 and 4.45.  Although he has
complained of flare-ups, they occur only after certain
activities, such as prolonged standing or physical activity.
VA examination in August 2004 demonstrated a minimal
difference in range of motion testing after five repetitions.
On VA examination in April 2005, the Veteran reported
experiencing pain on repetitive range of motion testing,
however, there was no evidence of a lack of endurance or
weakness.  There has been no evidence that, from September 1,
2004, to March 25, 2007, the Veteran's flare-ups resulted in
favorable ankylosis of the spine or forward flexion to less
than 30 degrees, or that since March 26, 2007, the Veteran's
flare-up result in unfavorable ankylosis of the spine.
DeLuca v. Brown, 8 Vet. App. 202 (1995).  The Board therefore
finds that an increased rating based on additional pain,
excess motion, fatigability, or incoordination is not
warranted because the evidence overall does not demonstrate
that due to those symptoms or flare-ups that the Veteran is
disabled to the extent and to the frequency required by the
next higher rating.

The Board has also considered whether the record raises the
matter of an extraschedular rating under 38 C.F.R. �
3.321(b)(1) (2008).  In exceptional cases where schedular
evaluations are found to be inadequate, consideration of an
extraschedular evaluation commensurate with the average
earning capacity impairment due exclusively to the service-
connected disability or disabilities may be made.  The
governing norm in an exceptional case is a finding that the
case presents such an exceptional or unusual disability
picture with such related factors as marked interference with
employment or frequent periods of hospitalization as to
render impractical the application of the regular schedular
standards.  38 C.F.R � 3.321(b)(1).

In this case, the Schedule is not inadequate.  The Schedule
provides for higher ratings for the Veteran's back
disability, but findings supporting a rating in excess of 20
percent have not been documented.  In addition, it has not
been shown that the service-connected back disability has
required frequent periods of hospitalization or has produced
marked interference with the Veteran's employment.  In fact,
the Veteran has consistently reported to his VA examiner's
that he had been attending a university and has worked in at
least two positions throughout the pendency of his appeal.
Therefore, the Board finds that referral for consideration of
the assignment of an extraschedular rating is not warranted.

The Board has considered whether a higher rating might be
warranted for any period of time during the pendency of this
appeal.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v.
Mansfield, 21 Vet. App. 505 (2007).  However, the weight of
the credible evidence demonstrates that for the period from
September 1, 2004 to March 25, 2007, the Veteran's low back
disability has not warranted a rating higher than 20 percent.
However, the Board finds that since March 26, 2007, the
Veteran's low back disability has warranted an increased
rating of 40 percent, but no higher.  In addition to these
ratings, the Board finds that the Veteran is entitled to a
separate 10 percent rating, but no higher, for neurological
manifestations of the service-connected disability of the
spine in the right lower extremity.  The "benefit-of-the-
doubt" rule has been considered in making this decision.
38 U.S.C.A. � 5107(b) (West 2002); Gilbert v. Derwinski, 1
Vet. App. 49, 50 (1990).

B.  Right Knee

A claimant who has arthritis and instability of the knee may
be rated separately under DC 5003 and DC 5257.  Evaluation of
a knee disability under both of those diagnostic codes does
not amount to pyramiding.  However, a separate rating must be
based on additional compensable level of disability.  38
C.F.R. � 4.14 (2008); VAOPGCPREC 23-97 (July 1, 1997), 62
Fed. Reg. 63604 (1997); Esteban v. Brown, 6 Vet. App. 259
(1994).

Separate ratings may be assigned for limitation of flexion
and limitation of extension of the same knee.  Specifically,
where a Veteran has both a compensable level of limitation of
flexion and a compensable level of limitation of extension of
the same leg, the limitations must be rated separately to
adequately compensate for functional loss associated with
injury to the leg.  VAOPGCPREC 9-04 (Sept. 17, 2004), 69 Fed.
Reg. 59990 (2005).

The Veteran's right knee disability has been rated 10 percent
disabling under DC 5010-5024.  Hyphenated diagnostic codes
are used when a rating under one diagnostic code requires the
use of an additional diagnostic code to identify the basis
for the evaluation assigned; the additional code is shown
after the hyphen.  38 C.F.R. � 4.27 (2008).   Diagnostic Code
5010 pertains to traumatic arthritis.  38 C.F.R. � 4.71a, DC
5010.  DC 5024 pertains to tenosynovitis.  As the Veteran had
been diagnosed with iliotibial band syndrome, the RO rated
him by analogy to tenosynovitis, which is rated based upon
limitation of motion of the affected joint.  Accordingly, DCs
5260 and 5261, which contemplate limitation of flexion and
extension of the knee, are applicable.  38 C.F.R. � 4.71a, DC
5260, 5261 (2008).  Diagnostic Code 5257, which pertains to
subluxation or lateral instability, 5258, which pertains to
dislocation of semilunar cartilage with frequent episodes of
"locking," pain, and effusion of the joint, and 5259, which
pertains to the removal of semilunar cartilage, are also
potentially applicable in this instance.  38 C.F.R. � 4.71a,
DCs 5010, 5024, 5257, 5258, 5259, 5260, 5261

In considering the applicability of other diagnostic codes,
the Board finds that DCs 5256 (ankylosis of the knee), 5262
(impairment of the tibia and fibula), and 5263 (genu
recurvatum) are not applicable in this instance, as the
medical evidence does not show that the Veteran has any of
these conditions.  Specifically, the treatment records and
the August 2004, April 2005, and March 2007 VA examinations
do not demonstrate any objective finding of ankylosis of the
right knee.  Additionally, no impairment of the tibia or
fibula, or genu recurvatum, has been diagnosed.

In January 2006, the Veteran underwent a meniscectomy of the
right knee. The RO assigned a temporary total disability
rating from January 21, 2006, to February 28, 2006.  See
38 C.F.R. � 4.30.  The 100 percent rating in effect during
this period is the maximum rating possible under all
potentially applicable rating criteria; the Veteran cannot be
awarded more than 100 percent under schedular criteria at any
given time.  See 38 C.F.R. � 4.71a.   Therefore, the Board
need not discuss the impact of DeLuca v. Brown, 8 Vet. App.
202 (1995) (evaluation of musculoskeletal disorders rated on
the basis of limitation of motion requires consideration of
functional losses due to pain), before finding that an
increased schedular rating for a right knee disability is not
warranted for that period of time.  See Johnston v. Brown, 10
Vet. App. 80, 85 (1997).

Under DC 5260, which contemplates limitation of leg flexion,
a zero percent rating is warranted for flexion limited to 60
degrees; a 10 percent rating is warranted for flexion limited
to 45 degrees; a 20 percent rating is warranted for flexion
limited to 30 degrees; and a 30 percent rating is warranted
for flexion limited to 15 degrees.  38 C.F.R. � 4.71a, DC
5260.  Under DC 5261 (limitation of extension of the leg), a
zero percent rating is warranted for extension limited to 5
degrees; a 10 percent rating is warranted for extension
limited to 10 degrees; a 20 percent rating is warranted for
extension limited to 15 degrees; a 30 percent rating is
warranted for extension limited to 20 degrees; a 40 percent
rating is warranted for extension limited to 30 degrees; and
a 50 percent rating is warranted for extension limited to 45
degrees.  38 C.F.R. � 4.71a, DC 5261.

The first clinical record regarding the Veteran's claim for
increase for his right knee disability is a VA examination in
April 2004.  At that time, the Veteran had extension of the
left knee to 0 degrees, and flexion to 120 degrees.  The VA
examiner did not record range of motion testing on repetitive
use.

On VA examination in August 2004, the Veteran had active
extension of the right knee to 0 degrees, and active flexion
to 116 degrees, with pain that was described as 1/10.  The
Veteran had passive extension of the right knee to 0 degrees,
and passive flexion to 124 degrees.  Range of motion testing
after five repetitions was extension of 0 degrees, and
flexion to 121 degrees.

On VA examination in April 2005, the Veteran had extension of
the right knee to 0 degrees, and flexion to 140 degrees, with
pain beginning at 90 degrees.  The Veteran could not
repetitively squat due to the pain in the right knee.
.
On VA examination in March 2007, the Veteran had extension of
the right knee to 0 degrees, and flexion to 140 degrees, with
pain beginning in the last 20 degrees without functional
loss.

For VA purposes, normal extension and flexion of the knee is
from 0 to 140 degrees.  38 C.F.R. � 4.71a, Plate II.  On each
occasion that the range of motion of the Veteran's right knee
was measured, he had full extension, or extension to 0
degrees.  Extension to 0 degrees warrants a noncompensable
evaluation.  Diagnostic Code 5261 therefore cannot serve as a
basis for an increased rating or any separate compensable
rating in this case.  Similarly, DC 5260 cannot serve as a
basis for an increased rating or any separate compensable
rating in this case.  The flexion of the Veteran's right knee
would have to be limited to 30 degrees in order to warrant an
increased rating of 20 percent.  Flexion limited at most to
116 degrees does not warrant a rating higher than 10 percent
under DC 5260.

The Board has determined that the Veteran is not entitled to
a compensable rating under either DC 5260 or 5261.  Given
that he did not meet the criteria for a compensable rating
under either of these diagnostic codes, General Counsel
Precedent Opinion VAOPGCPREC 9-2004 is not applicable.
VAOPGCPREC 9-2004 (September 17, 2004).  VAOPGCPREC 9-2004
held that separate ratings could be assigned when the
criteria for a compensable rating under DCs 5260 and 5261
were met.  In the present case, there is no basis for a
compensable rating under either of DC 5260 or DC 5261.

Next, the rating criteria for DC 5257 (other impairment of
the knee) provides that a knee impairment with recurrent
subluxation or lateral instability is rated 10 percent when
slight, 20 percent when moderate, and 30 percent when severe.
38 C.F.R. � 4.71a, DC 5257.  Under 38 C.F.R. � 4.31, where
the criteria for a compensable rating under a diagnostic code
are not met, and the schedule does not provide for a zero
percent evaluation, as in DC 5257, a zero percent rating will
be assigned when the required symptomotology is not shown. 38
C.F.R.  � 4.31 (2008).

On April 2004 VA examination, the Veteran reported that he
had begun to experience pain in his right knee in January
2004.  The knee hurt when he ran, squatted, or jumped.  He
reported no improvement with physical therapy, and found only
temporary relief by taking ibuprofen.  MRI examination of the
right knee revealed mild degenerative joint disease of the
lateral compartments, with minimal degenerative changes of
the posteral horn of the lateral meniscus.

On August 2004 VA examination, the Veteran reported that he
had pain in the lateral aspect of the right knee.  He
reported that his physical therapist had diagnosed him with
iliotibial band syndrome.  He reported experiencing knee pain
when sitting for a prolonged period, as well as difficulty
negotiating stairs.  Physical examination revealed normal
reflexes in the right knee, with no neurological
manifestations.  Further review of the April 2004 MRI
revealed moderate interstitial edema of the anterior cruciate
ligament.  The assessment was iliotibial band syndrome.

Om April 2005 VA examination, the Veteran reported that his
right knee pain was a 5/10.  He described the pain as
accompanied by swelling, locking, fatigability, a giving way
sensation, and lack of endurance for ambulation.  He was
taking pain medication with mild relief.  He reported
experiencing flare-ups due to prolonged standing, bending,
negotiating stairs, and driving.  The flare-ups occurred two
to three times per month and lasted two to three hours at a
time.  Instability testing was positive on varus examination
and negative on anterior or posterior ligament examination.
McMurray testing was positive at the lateral area of the
right knee.  There was no evidence of edema effusion or
redness of the right knee.  MRI examination revealed a
lateral meniscus tear with loose meniscal fragments.  There
was medial femoral chondromalacia at the patellofemoral
joint.  There was mild chondromalacia at the posterolateral
tibial plateau area.  The assessment was right knee lateral
meniscus tear, chondromalacia patella, and patellofemoral
dysfunction.

In August 2006, approximately seven months following a
meniscectomy of the right knee, the Veteran reported that his
right knee was still in constant pain and was worse in the
morning.  It was localized along the lateral joint line.  The
pain was worse when walking or with prolonged activity.  He
also reported crackling of the knee, but no buckling or
giving way.  Physical examination revealed  no edema,
erythema, warmth, or visible masses.  The assessment was
right patellofemoral syndrome.

On March 2007 VA examination, the Veteran reported continued
symptoms of pain, swelling, locking, and giving way.  He
reported that he suffered from weekly flare-up that lasted
form 2 to 3 hours.   Physical examination revealed tenderness
over the right knee at the peripatellar area, with no
swelling or redness.  Stability testing revealed no
instability in the lateral or medial anterior or posterior
ligaments.  Lachman testing was negative.  McMurray testing
and Appley testing were both positive, mainly in the lateral
aspects of the right knee.  The assessment was right knee
chondromalacia patella, patellofemoral dysfunction, lateral
meniscal tear, and degenerative joint disease.

April 2007 and October 2007 treatment records reflect
continued complaints of right knee pain, with complaints of
crepitis and locking.  In October 2007, the Veteran was
counseled on the benefits of arthoscopic procedure for the
right knee.

In this case, the Veteran has complained of right knee
locking and giving way, as well as problems negotiating
stairs and frequent flare-ups.  Although he underwent a
partial meniscectomy in January 2006, the clinical evidence
demonstrates that the Veteran has been diagnosed with mild
chondromalacia patella and degenerative joint disease since
he was service-connected in September 2004.  Because various
treatment records and testing for instability on April 2005
and March 2007 VA examinations reveal slight instability of
the right knee, and resolving the benefit of the doubt in
favor of the Veteran, the Board finds that the Veteran is
entitled to a separate 10 percent rating for slight
instability.  Furthermore, that instability was confirmed at
the most recent VA examination and the most recent VA
treatment records.  The Veteran is competent to report
experiencing instability, as the perception of instability
comes to him through his senses, and he has reported
experiencing such instability since the time he filed his
claim, the Board finds that he is entitled to a separate 10
percent rating for instability effective September 1, 2004 to
January 30, 2006 and then from March 1, 2006 to the present,
so that the separate 10 percent rating is not in effect
during the time period when the Veteran was in receipt of a
temporary total disability following his right knee surgery.
Layno v. Brown, 6 Vet. App. 465 (1994).  In addressing
whether he is entitled to a rating higher than 10 percent,
the Board finds that he is not, as the Veteran's lateral
collateral ligament and medial collateral ligament, as well
as his anterior cruciate ligament and posterior cruciate
ligament, have continuously been found to be within normal
limits since 2004, thus indicating normal ligament stability.
Evidence of the Veteran's knee slipping or giving way, with
otherwise normal stability of the ligaments, may not be found
to equate to moderate instability.

The Veteran in this case has been awarded a 10 percent rating
under DC 5010, for degenerative arthritis.  38 C.F.R. �
4,71a, DC 5010.  In order to be eligible for a separate
rating under that diagnostic code, the Veteran must not
qualify for compensation under the diagnostic codes
pertaining to limitation of motion.  38 C.F.R. �� 5003, 5010.
However, the Veteran here does not qualify for compensation
on the basis of limitation of motion.  The issue before the
Board, then, is whether the Veteran is entitled to a higher
rating under DC 5010 for his degenerative arthritis.  Under
DC 5010, a 20 percent rating is not warranted unless X-ray
evidence shows involvement of two or more major joints or two
or more minor joint groups with occasional incapacitating
exacerbations. The knee is considered a major joint.
Because, however, in this case there are not two or more
major or minor joints involved for which the Veteran has
established service connection for arthritis, he is not
entitled to a rating greater than the current 10 percent
rating under this code.

Additionally, under DC 5259, a maximum rating of 10 percent
is awarded for the symptomatic removal of semilunar
cartilage.  While the Veteran has undergone a partial
meniscectomy, he is already in receipt of a separate 10
percent rating under 5257, and therefore DC 5259 cannot serve
as a basis for an increased rating in this case.  Similarly,
although DC 5258 provides for a 20 percent rating for
dislocated semilunar cartilage with frequent episodes of
"locking," pain, and effusion of the joint, the Veteran is
already in receipt of a rating under 5257, which contemplates
the Veteran's symptoms of pain, crepitus, locking, and giving
way.  Therefore, to separately compensate the Veteran under
DC 5258 would constitute pyramiding, which is prohibited by
VA regulations.  38 C.F.R. � 4.14.  Further, while the
Veteran has complained of frequent flare-ups accompanied by
swelling and a giving way sensation, the clinical evidence
does not demonstrate evidence of effusion or dislocation of
semilunar cartilage of the right knee, and therefore the
Veteran is not entitled to a separate rating under DC 5258.

The Veteran contends that his right knee disability flares up
when walking, climbing stairs, or standing for a prolonged
period of time.  However, even if the Veteran does experience
flare-ups of his right knee disability, the Board finds it
unlikely, and there is no evidence which suggests, that, on
repetitive use, the right knee would be restricted by pain or
other factors to only 45 degrees flexion or 10 degrees
extension.  Thus, even considering the effects of pain on
use, there is no probative evidence that the further
limitation due to pain results in the right knee being
limited to a sufficient extent to warrant a higher rating.
38 C.F.R. �� 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202
(1995).

The Board has also considered whether the record raises the
matter of an extraschedular rating under 38 C.F.R. �
3.321(b)(1) (2008).  In this case, the Schedule is not
inadequate.  The Schedule does provide for higher ratings for
the Veteran's service-connected knee disability.  The
evidence does not show that the Veteran's knee disability is
productive of marked interference with employment which would
be exceptional for that envisioned by the rating schedule at
the Veteran's current rating nor does the evidence show
frequent hospitalization related to the knee.  Rather, the
evidence shows that the Veteran is a student at a university
and has been employed in at least two different positions.
The evidence also does not show frequent hospitalization due
to the disability.  For these reasons, the Board finds that
referral for assignment of an extraschedular rating for this
disability is not warranted.

Finally, the Board has considered whether a higher rating
might be warranted for any period of time during the pendency
of this appeal.  Fenderson v. West, 12 Vet. App. 119 (1999);
Hart v. Mansfield, 21 Vet. App. 505 (2007).  However, the
weight of the credible evidence demonstrates that the
Veteran's right knee disability has warranted no more than a
10 percent rating pursuant to DC 5010-5024 since September 1,
2004.  Additionally, the Board finds that the weight of the
credible evidence demonstrates that the Veteran has been
entitled to a separate 10 percent rating for slight
instability of the left knee pursuant to DC 5257 from
September 1, 2004 to January 30, 2006, and then from March 1,
2006 to the present .  All benefit of reasonable doubt has
been resolved in favor of the claimant in making this
decision.  38 U.S.C.A. � 5107(b) (West 2002); Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).

Duties to Notify and Assist

The Veteran's claims arise from his disagreement with the
initial evaluations following the grant of service
connection.  Once service connection is granted the claim is
substantiated, additional notice is not required and any
defect in the notice is not prejudicial.  Hartman v.
Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v.
Nicholson, 21 Vet. App. 112 (2007).

As to the duty to assist, the Board notes that VA has
associated the service treatment records and post-service
treatment records with the claims folder.  In addition, he
was afforded VA examinations.  Thus, the duty to assist has
been met.

ORDER

An initial rating higher than 20 percent for the period from
September 1, 2004, to March 25, 2007, for a low back
disability is denied.

An initial rating of 40 percent, but no higher, since March
26, 2007, for a low back disability is granted.

A separate 10 percent rating for mild incomplete paralysis of
the sciatic nerve of the right lower extremity, is granted.

An initial rating higher than 10 percent for a right knee
disability is denied.

A separate 10 percent rating for slight instability of the
right knee is granted.

REMAND

Additional development is needed prior to further disposition
of the claim for an initial rating higher than 10 percent for
migraine headaches.

In January 2005, the Veteran disagreed with all issues in the
October 2004 rating decision, including the denial of service
connection for migraine headaches.  In August 2005, the RO
subsequently granted service connection for migraine
headaches and awarded a 10 percent disability rating,
effective September 1, 2004.  In a January 2006 statement,
the Veteran requested that the RO include his migraine
headaches in his appeal.  It does not appear from a review of
the claims file that the Veteran has been issued a statement
of the case on this issue.  Where a notice of disagreement
has been filed with regard to an issue, and a statement of
the case has not been issued, the appropriate Board action is
to remand the issue for issuance of a statement of the case.
Manlincon v. West, 12 Vet. App. 238 (1999).

Accordingly, the case is REMANDED for the following action:

Send the Veteran and his representative a
statement of the case on the issue of
entitlement to an initial rating higher
than 10 percent for migraine headaches.
He should be informed of his appeal
rights.

The appellant has the right to submit additional evidence and
argument on the matter the Board is remanding.  Kutscherousky
v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law
requires that all claims that are remanded by the Board or
the United States Court of Appeals for Veterans Claims for
additional development or other appropriate action must be
handled in an expeditious manner.  38 U.S.C.A. �� 5109B, 7112
(West Supp. 2008).

____________________________________________
STEVEN D. REISS
Acting Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


series: legacy

judge_norm: MARK D HINDIN

benefit: reduction

condition: back

text: 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.A. §§ 5109B, 7112 (West Supp. 2008).

text:
Citation Nr: 0911000
Decision Date: 03/25/09    Archive Date: 04/01/09

DOCKET NO.  05-16 009	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee

THE ISSUES

1.  Whether the severance of service connection for post-
traumatic stress disorder (PTSD) was proper.

2.  Entitlement to service connection for peripheral
neuropathy, neurological problems, and tremors, to include as
due to Agent Orange exposure.

3.  Entitlement to service connection for a spine disability.

4.  Entitlement to service connection for stomach problems,
to include ulcers.

5.  Entitlement to service connection for kidney infections,
urinary tract infections, and bladder condition.

6.  Entitlement to service connection for arthritis,
orthopedic and muscular problems, to include as due to Agent
Orange exposure.

7.  Entitlement to service connection for a skin condition,
to include as due to Agent Orange exposure.
REPRESENTATION

Appellant represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

Appellant and his spouse

ATTORNEY FOR THE BOARD

J. Hager, Counsel

INTRODUCTION

The Veteran served on active duty from January 1969 to August
1969.

These matters come before the Board of Veterans' Appeals
(Board) from two rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Nashville,
Tennessee.

In March 2003, the RO denied service connection for eight
disabilities.  After the Veteran filed a notice of
disagreement, the RO issued a statement of the case, and the
Veteran filed a substantive appeal, the Veteran withdrew his
appeal with regard to the issues of service connection for
sterility and for loss of an eye.  The remaining six claims
for service connection, listed on the title page, are
therefore before the Board.

Separately, in March 2005, the RO granted service connection
for PTSD.  However, in March 2006, the RO proposed to sever
service connection for PTSD based on a finding of clear and
unmistakable error (CUE) in the March 2005 decision ranting
service connection for this disability.  After the Veteran
testified at a July 2006 RO hearing regarding the proposed
severance, the RO, in March 2007, severed service connection.
In his substantive appeal, the Veteran requested a Travel
Board hearing, but a November 2007 statement in support of
claim (VA Form 21-4138) indicates that the Veteran withdrew
this request.

The issues of entitlement to service connection for
peripheral neuropathy, neurological problems, and tremors,
spine disability, stomach problems to include ulcers, kidney
infections, urinary tract infections, and bladder condition,
arthritis, orthopedic and muscular problems, and a skin
condition, are addressed in the REMAND portion of the
decision below and are REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC.

FINDINGS OF FACT

1.  In March 2005, the RO granted service connection for
PTSD.

2.  In March 2006, the RO proposed to sever service
connection for PTSD.

3.  At the time of the grant of service connection for PTSD,
there was a diagnosis of PTSD based on the Veteran's report
of being threatened with a knife by a civilian and there was
evidence of behavior changes in response to the attack.

4.  The evidence obtained since the March 2005 grant of
service connection for PTSD, does not show that the grant of
service connection was the result of an undebatable error.

CONCLUSION OF LAW

The March 2005 grant of service connection for PTSD was not
based on CUE; and severance of service connection was not
proper.  38 U.S.C.A. �� 5109A, 5112 (West 2002); 38 U.S.C.A.
�� 3.103, 3.105 (2008).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

VCAA

The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. �� 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R. ��
3.102, 3.156(a), 3.159, 3.326(a) (2008).

With regard to the claim decided herein, however, the VCAA
and its implementing regulations are inapplicable.  This
claim involves severance of service connection issues which
requires application of the clear and unmistakable evidence
(CUE) standard.  The United States Court of Appeals for
Veterans Claims (Court) has held that the VCAA is not
applicable to motions for revision of a Board decision on the
grounds of CUE.  Livesay v. Principi, 15 Vet. App. 165
(2001).

The RO sent the Veteran a questionnaire regarding the claimed
in-service stressful experience on which the grant of service
connection for PTSD was based, and the Veteran responded to
this questionnaire.  The Veteran did not indicate during the
hearing or elsewhere the existence of any other evidence that
is relevant to his appeal.  In fact, during the hearing, the
Veteran indicated that he only reported the incident to his
Sergeant, who was not required to keep records of such
reports, and the Veteran's representative indicated that it
was unlikely such a report would have been recorded.  As
noted below, the claims file contains a November 2003 notice
of decision indicating that the Security Administration (SSA)
found the Veteran disabled, but neither the SSA's disability
determination nor the medical records underlying it have been
associated with the claims file.  However, this evidence
cannot be pertinent to the Board's determination of the
propriety of severance of PTSD, because, as explained below,
the severance was based on the absence of verification of the
Veteran's claimed in-service stressor.  Such verification
cannot come from after-the-fact evidence such as the SSA
disability determination and the medical record underlying
it.  See Moreau v. Brown, 9 Vet. App. 389, 396 (1996).  Thus,
a remand of the claim herein decided is not required because
there is no reasonable possibility that additional
development will aid the Veteran.  See DelaCruz v. Principi,
15 Vet. App. 143, 149 (2001).

The RO sent the Veteran a notice letter in April 2006 that
informed him of the proposal to sever his service connection
benefits.  In that notice, the Veteran was provided with
detailed reasons for the proposed severance and the type of
information or evidence he could submit in response.  He was
informed of his right to a personal hearing and his right to
representation.  The April 2006 letter also informed the
Veteran that unless additional evidence was received within
60 days, service connection for PTSD would be severed.  The
March 2006 decision proposing severance further explained the
basis for this action, and the March 2007 decision complied
with the requirements of 38 C.F.R. � 3.105(d) in severing
service connection effective June 1, 2007.

Analysis

Once service connection has been granted, it can be severed
only upon the Secretary's showing that the final rating
decision granting service connection was "clearly and
unmistakably erroneous," and only after certain procedural
safeguards have been met.  38 C.F.R. � 3.105(d); see also
Daniels v. Gober, 10 Vet. App. 474, 478 (1997); Graves v.
Brown, 6 Vet. App. 166 (1994).

When severance of service connection is warranted, a rating
proposing severance will be prepared setting forth all
material facts and reasons.  The Veteran will be notified at
his or her latest address of record of the contemplated
action and furnished detailed reasons therefore and will be
given 60 days for the presentation of additional evidence to
show that service connection should be maintained.  38 C.F.R.
�� 3.103(b)(2), 3.105(d).

Service connection will be severed only where the evidence
establishes that the grant was clearly and unmistakably
erroneous.  The burden of proof in such cases is upon the
Government.  38 C.F.R. � 3.105(d).  See also Baughman v.
Derwinski, 1 Vet.App. 563, 566 (1991).

CUE is defined as "a very specific and rare kind of 'error.'
It is the kind of error, of fact or of law, that when called
to the attention of later reviewers compels the conclusion,
to which reasonable minds could not differ, that the result
would have been manifestly different but for the error."
Fugo v. Brown, 6 Vet. App. 40, 43 (1993).

To determine whether CUE was present under 38 C.F.R. �
3.105(a) in a prior determination, either the correct facts,
as they were known at the time, were not before the
adjudicator (i.e., more than a simple disagreement as to how
the facts were weighed or evaluated) or the statutory or
regulatory provisions extant at the time were incorrectly
applied; the error must be undebatable and of the sort which,
had it not been made, would have manifestly changed the
outcome at the time it was made; and a determination that
there was clear and unmistakable error must be based on the
record and law that existed at the time of the prior
adjudication in question.  Damrel v. Brown, 6 Vet. App. 242,
245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14
(1992) (en banc).

In determining whether service connection will be severed, VA
may-and, in fact, must-consider evidence that was generated
after the original decision was made.  Stallworth v.
Nicholson, 20 Vet. App. 482 (2006) (holding that a
"severance decision focuses-not on whether the original
decision was clearly erroneous-but on whether the current
'evidence establishes that [service connection] is clearly
erroneous'" (quoting 38 C.F.R. � 3.105(d)); see Daniels v.
Gober, 10 Vet. App. 474, 480 (1997) (holding that 38 C.F.R. �
3.105(d) "clearly contemplat[es] the consideration of
evidence acquired after the original granting of service
connection").

Service connection for PTSD requires medical evidence
diagnosing the condition in accordance with 38 C.F.R.
� 4.125(a); a link, established by medical evidence, between
current symptoms and an in-service stressor; and credible
supporting evidence that the claimed in-service stressor
occurred.

The evidence necessary to establish the occurrence of a
recognizable stressor during service to support a diagnosis
of PTSD will vary depending upon whether the Veteran "engaged
in combat with the enemy." See 38 U.S.C.A. � 1154(b); 38
C.F.R. � 3.304(f); Cohen v. Brown, 10 Vet. App. 128 (1997);
Zarycki v. Brown, 6 Vet. App. 91, 98 (1993).  Participation
in combat, a determination that is to be made on a case-by-
case basis, requires that the Veteran have personally
participated in events constituting an actual fight or
encounter with a military foe or hostile unit or
instrumentality.  See VAOPGCPREC 12-99 (October 18, 1999).
If VA determines the Veteran engaged in combat with the enemy
and his alleged stressor is combat-related, then his lay
testimony or statement is accepted as conclusive evidence of
the stressor's occurrence and no further development or
corroborative evidence is required-provided that such
testimony is found to be "satisfactory," i.e., credible and
"consistent with circumstances, conditions or hardships of
service."  See 38 U.S.C.A. � 1154(b); 38 C.F.R. � 3.304(f);
Cohen, 10 Vet. App. at 146-47; Zarycki, 6 Vet. App. at 98.
If, however, VA determines either that the Veteran did not
engage in combat with the enemy or that he did engage in
combat, but that the alleged stressor is not combat related,
then his lay testimony, in and of itself, is not sufficient
to establish the occurrence of his alleged stressor.
Instead, the record must contain evidence that corroborates
his testimony or statements.  Cohen, 10 Vet. App. at 146-47;
Zarycki, 6 Vet. App. at 98.

If a posttraumatic stress disorder claim is based on in-
service personal assault, evidence from sources other than
the Veteran's service records may corroborate the Veteran's
account of the stressor incident. Examples of such evidence
include, but are not limited to: records from law enforcement
authorities, rape crisis centers, mental health counseling
centers, hospitals, or physicians; pregnancy tests or tests
for sexually transmitted diseases; and statements from family
members, roommates, fellow service members, or clergy.
Evidence of behavior changes following the claimed assault is
one type of relevant evidence that may be found in these
sources. Examples of behavior changes that may constitute
credible evidence of the stressor include, but are not
limited to: a request for a transfer to another military duty
assignment; deterioration in work performance; substance
abuse; episodes of depression, panic attacks, or anxiety
without an identifiable cause; or unexplained economic or
social behavior changes. VA will not deny a post-traumatic
stress disorder claim that is based on in-service personal
assault without first advising the claimant that evidence
from sources other than the Veteran's service records or
evidence of behavior changes may constitute credible
supporting evidence of the stressor and allowing him or her
the opportunity to furnish this type of evidence or advise VA
of potential sources of such evidence. VA may submit any
evidence that it receives to an appropriate medical or mental
health professional for an opinion as to whether it indicates
that a personal assault occurred.  38 C.F.R. � 3.304(f)(4)
(formerly 38 C.F.R. � 3.304(f)(3)).

In this case, the only stressor that the Veteran has alleged
is an August 1969 incident, which occurred while he was
stationed in Korea, in which he was threatened on a city
street by a knife-wielding man who apparently thought the
Veteran had stolen his girlfriend.

On the December 2004 VA examination, the Veteran was
diagnosed as having PTSD due to his claimed in-service
stressor.

The March 2005 rating decision granted service connection
because the Veteran's personnel file reflects that around the
time of the alleged stressor, the Veteran applied for a
hardship discharge, and it was noted on his August 1969
separation examination that he had occasional nervousness due
to stress.  In addition, the Veteran's August 1969 report of
medical history indicated that he had, or had previously had,
nervous trouble of any sort.

In an April 1969 report of medical history made in connection
with an examination entitled, "remote/isolated duty and lost
records," the Veteran indicated, as he later did in the
August 1969 report of medical history that he had, or had
previously had, nervous trouble of any sort.  The April 1969
report was made prior to the Veteran's tour of duty in Korea.

The Veteran's service personnel records reflects that, in his
July 1969 application for hardship discharge, and in the
supporting statements of his Commander, Minister, family
physician, mother, and friends, the only reasons given for
the hardship discharge concerned the health of his father,
and his parents' inability to maintain their family farm in
his absence.

Neither the regulation or the courts have defined the term
"personal assault" as used in 38 C.F.R. � 3.304(f)(4).
While this term may commonly be thought to refer to sexual
assault, the Court has applied the provisions of 38 C.F.R.
� 3.304(f)(4) to situations where there was a physical
assault or threat alone.  See Bradford v. Nicholson, 20 Vet.
App. 200 (2006) (applying 38 C.F.R. � 3.304(f)(4) to a PTSD
claim based on being pushed down a flight of stairs).

The original grant of service connection for PTSD in 2005 was
premised on a finding that the Veteran's stressor constituted
a personal assault.  Bradford provides support for the RO's
analysis.  The RO essentially found that the Veteran's
application for a hardship discharge and complaints of
nervousness constituted evidence of behavior changes.

While it is possible to interpret these events in a manner
different from the RO, its interpretation was not clearly
erroneous.  Indeed, subsequently received evidence seems to
support a conclusion that there were behavior changes in
response to the claimed stressor.  The Veteran's spouse
reported that he had been "antsy" and experienced, what she
now understood were panic attacks, throughout their marriage
beginning in October 1970.  A former co-worker recalled the
Veteran telling him about the Korean assault while they were
working together some time between 1977 and 1983.

In short, the record does not show that the grant of service
connection for PTSD was the product of CUE.  Hence the
severance was not proper and service connection is restored.

ORDER

The severance of service connection for PTSD was not proper,
and the appeal for restoration of service connection is
granted.

REMAND

As noted above, a November 2003 SSA notice of decision
indicates that the Veteran has been granted SSA disability
benefits.  However, neither the SSA's disability
determination nor the medical records considered in making
this determination have been associated with the claims file.
While the notice of decision appears to indicate that the
Veteran's primary disability relates to his back, there is no
indication whether there is a secondary disability, and no
indication of what medical records were reviewed in making
this determination.  The United States Court of Appeals for
Veterans Claims (Court) has held that where there has been a
determination with regard to SSA benefits, the records
concerning that decision must be obtained.  Murincsak v.
Derwinski, 2 Vet. App. 363 (1992).

As stated by the Veteran's representative in the March 2009
brief to the Board, these records could provide evidence as
to the onset of the Veteran's disabilities.  Consequently, a
remand is required in order to request these records should
from SSA.

Accordingly, the claims for entitlement to service connection
for peripheral neuropathy, neurological problems, and
tremors, spine disability, stomach problems to include
ulcers, kidney infections, urinary tract infections, and
bladder condition, arthritis, orthopedic and muscular
problems, and a skin condition, are REMANDED for the
following action:

1.  Contact SSA and request a copy of the
SSA's disability determination along with
all medical records associated with the
Veteran's claim for SSA benefits awarded
in November 2003.

2.  If any benefit sought on appeal
remains denied, issue a supplemental
statement of the case.

The Veteran 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.A. �� 5109B, 7112 (West Supp. 2008).

______________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: RONALD W SCHOLZ

disposition: denied

text:
Citation Nr: 0912000
Decision Date: 03/31/09    Archive Date: 04/08/09

DOCKET NO.  06-19 976	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee

THE ISSUE

Entitlement to service connection for bilateral hearing loss.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

L. J. Vecchiollo, Counsel

INTRODUCTION

The veteran served on active duty from September 1942 to
January 1946.

This matter came before the Board of Veterans' Appeals
(Board) on appeal from a March 2005 rating decision by the
Nashville, Tennessee, Department of Veterans Affairs (VA)
Regional Office (RO).

The Veteran testified at a hearing at the RO before the
undersigned in December 2007.  A transcript of the proceeding
is of record.  The Board remanded the bilateral hearing loss
claim in January 2008 for further development and
consideration.

This appeal has been advanced on the Board's docket pursuant
to 38 C.F.R. � 20.900(c) (2008).  38 U.S.C.A. � 7107(a)(2)
(West 2002).

FINDINGS OF FACT

1.  The Veteran engaged in combat with the enemy.

2.  A bilateral hearing loss disability did not have its
onset in service, was not manifest to a compensable degree
within a year after service, and is not attributable to
service.

CONCLUSION OF LAW

Bilateral hearing loss was not incurred in or aggravated by
service, nor may sensorineural hearing loss be presumed to
have been so incurred.  38 U.S.C.A. �� 1110, 1112, 1154,
5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. ��
3.303, 3.307, 3.309 (2008).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

Upon receipt of a complete or substantially complete
application, VA must notify the claimant of the information
and evidence not of record that is necessary to substantiate
a claim, which information and evidence VA will obtain, and
which information and evidence the claimant is expected to
provide.  38 U.S.C.A. � 5103(a).

The notice requirements apply to all five elements of a
service connection claim: 1) veteran status; 2) existence of
a disability; (3) a connection between the veteran's service
and the disability; 4) degree of disability; and 5) effective
date of the disability.  Dingess v. Nicholson, 19 Vet. App.
473 (2006); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008).

The notice must be provided to a claimant before the initial
unfavorable adjudication by the RO.  Pelegrini v. Principi,
18 Vet. App.112 (2004).

The notice requirements may be satisfied if any errors in the
timing or content of such notice are not prejudicial to the
claimant.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005),
rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

The RO provided the Veteran pre-adjudication notice by letter
dated in December 2004.

The notification substantially complied with the requirements
of Quartuccio v. Principi, 16 Vet. App. 183 (2002),
identifying the evidence necessary to substantiate a claim
and the relative duties of VA and the claimant to obtain
evidence.

While the notification did not advise the Veteran of the laws
regarding degrees of disability or effective dates for any
grant of service connection, no new disability rating or
effective date for award of benefits will be assigned as the
claims for service connection were denied.  Accordingly, any
defect with respect to that aspect of the notice requirement
is rendered moot.  See Bernard v. Brown, 4 Vet. App. 384, 394
(1993).

VA has obtained service treatment records, assisted the
Veteran in obtaining evidence, obtained a medical opinion as
to the etiology and severity of the claimed disability, and
afforded the Veteran the opportunity to give testimony before
the Board.  All known and available records relevant to the
issues on appeal have been obtained and associated with the
Veteran's claims file; and the Veteran has not contended
otherwise.

VA has substantially complied with the notice and assistance
requirements and the Veteran is not prejudiced by a decision
on the claim at this time.

The Veteran failed to report for a VA audiological
examination in February 2005.  Accordingly, the claim was
remanded to provide the Veteran another VA examination with
an opinion regarding the etiology of his bilateral hearing
loss.  The Veteran failed to report for another VA
audiological examination in September 2008.  The agency of
original jurisdiction (AOJ) subsequently obtained a VA
medical opinion regarding the etiology of the Veteran's
bilateral hearing loss.

The medical evidence of record is sufficient to adjudicate
the Veteran's service connection claim without further
development and additional efforts to assist or notify the
Veteran would serve no useful purpose.  See Soyini v.
Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to
requirements of the law does not dictate an unquestioning,
blind adherence in the face of overwhelming evidence in
support of the result in a particular case; such adherence
would result in unnecessarily imposing additional burdens on
VA with no benefit flowing to the veteran).  Therefore, the
Veteran will not be prejudiced by the Board proceeding to the
merits of the claim.

II.  Analysis

The Veteran's service treatment records are negative for any
findings, complaints, or treatment of bilateral hearing loss.
He was treated for an earache in December 1944, and a left
ear fungus infection in July 1945.  The Veteran underwent a
private audiological examination in November 2004, in which
bilateral hearing loss was diagnosed.  However, no opinion
regarding the etiology the condition was rendered.

Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. � 1110.  In addition, service connection may be
granted for chronic diseases, including organic disease of
the nervous system to include sensorineural hearing loss, if
manifested to a compensable degree within one year following
service.  This presumption is rebuttable by affirmative
evidence to the contrary.  38 U.S.C.A. �� 1101, 1112; 38
C.F.R. �� 3.307, 3.309.  Service connection may be granted
for any disease diagnosed after discharge, when all the
evidence, including that pertinent to service, establishes
that the disease was incurred in service.  38 C.F.R. � 3.303.

To establish service connection for a disability, there must
be: (1) medical evidence of a current disability, (2) medical
evidence, or in certain circumstances lay testimony, of in-
service incurrence or aggravation of an injury or disease,
and (3) competent evidence of a nexus between the current
disability and the in-service disease or injury.  Pond v.
West, 12 Vet. App. 341, 346 (1999).

Impaired hearing shall be considered a disability when the
auditory thresholds in any of the frequencies of 500, 1,000,
2,000, 3,000, and 4,000 Hz are 40 decibels or greater; the
thresholds for at least three of these frequencies are 26
decibels or greater; or when speech recognition scores are 94
percent or less.  38 C.F.R. � 3.385.

The Veteran has asserted that his hearing loss disability is
the result of noise exposure during service, to include
combat during his service in World War II.  He also maintains
that his treatment of an ear infection in service proves that
his bilateral hearing loss began is service.  He also notes
that he has had hearing loss since separation from service.
The Veteran is a combat veteran.  Thus, he entitled to the
application of 38 U.S.C.A. � 1154(b).  The statute provides
the following:

The Secretary shall accept as sufficient
proof of service-connection of any
disease or injury alleged to have been
incurred in or aggravated by such service
satisfactory lay or other evidence of
service incurrence or aggravation of such
injury or disease, if consistent with the
circumstances, conditions, or hardships
of such service, notwithstanding the fact
that there is no official record of such
incurrence or aggravation in such
service, and, to that end, shall resolve
every reasonable doubt in favor of the
veteran.

Section 1154(b) does not create a statutory presumption that
a combat veteran's alleged disease or injury is service
connected.  Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir.
1996).  Rather, it aids the combat veteran by relaxing the
adjudicative evidentiary requirements for determining what
happened in service.  Id.

The Veteran is competent to report he noticed hearing loss in
service.  In fact, the Board accepts that the Veteran was
exposed to noise during combat and that he experienced
periods of hearing loss during service.  Section 1154(b)
addresses the combat veteran's ability to allege that an
event occurred in service while engaging in combat.  See
Beausoleil v. Brown, 8 Vet. App. 459, 464 (1996).  That
section, however, does not address the questions of either
the existence of a current disability or nexus to service,
for both of which competent evidence is generally required.
Id. citing Caluza v. Brown, 7 Vet. App. 498, 507 (1995).
Thus, the Veteran's combat status allows him to allege
hearing loss in service.  Whether such conditions were
chronic or were related to service requires competent
evidence.

A VA opinion was rendered in January 2009.  After a review of
the Veteran's claims file, the examiner stated that National
Academy of Sciences Institute of Medicine (IOM) studies have
shown that there is no scientific data to connect late-onset
noise related hearing loss to inservice noise exposure.  The
examiner noted that the Veteran's hearing loss first became
manifest nearly 58 years following service, with 35 years of
post-service occupational noise exposure.  The examiner
concluded that the Veteran's bilateral hearing loss was not
related to service.  The Board finds the opinion of the VA
audiological examiner to be more probative than the Veteran's
lay opinion, and consistent with the record.  The examiner
reviewed the claims file.

A veteran's delay in asserting a claim can constitute
negative evidence that weighs against the claim.  See Shaw v.
Principi, 3 Vet. App. 365 (1992).  The Veteran did not
initiate this claim until 2004, almost 58 years after
service, even though he requested service connection for 2
different conditions in December 1950.   A 58 year period
after separation from service, without diagnosis or treatment
is evidence that there has not been a continuity of
symptomatology from any incident of service, and it weighs
heavily against the claim on a direct basis.  See generally
Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (aggravation
in service may be rebutted by the absence of medical
treatment for the claimed condition for many years after
service).  In addition, the Veteran's claim of continuity of
symptomatology is inconsistent with the more probative
contemporaneous record, i.e., the January 2009 VA medical
opinion that the Veteran's hearing loss was not caused by
service.

The Veteran genuinely believes that his bilateral hearing
loss was incurred in service.  The Veteran is competent to
comment on his symptoms.  However, as a layperson, lacking in
medical training and expertise, the Veteran cannot provide a
competent opinion on a matter as complex as the etiology of
bilateral hearing loss, or that inservice earaches or
infections are the first manifestations of hearing loss, and
his views are of no probative value.  And, even if his
opinion was entitled to be accorded some probative value, it
is far outweighed by the detailed January 2009 VA opinion
provided by a medical professional.  See Jandreau v.
Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (competent
testimony "can be rejected only if found to be mistaken or
otherwise deemed not credible"); Buchanan v. Nicholson, 451
F.3d 1331 (Fed. Cir. 2006)).

The preponderance of the evidence is against the claim; there
is no doubt to be resolved; and service connection is not
warranted.

ORDER

Entitlement to service connection for bilateral hearing loss
is denied.

____________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs