Citation Nr: 0725321 Decision Date: 08/15/07 Archive Date: 08/22/07 DOCKET NO. 05-16 988 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for headaches. 2. Entitlement to service connection for traumatic brain injury (TBI). 3. Entitlement to service connection for a psychiatric disability, to include post-traumatic stress disorder (PTSD). 4. Entitlement to service connection for a bilateral shoulder disability, to include as secondary to service- connected cervical strain. 5. Entitlement to service connection for lumbar strain. 6. Entitlement to an initial rating in excess of 10 percent for tinnitus. 7. Entitlement to restoration of a 30 percent rating for cervical strain, effective April 1, 2007, including whether an increased rating in excess of 30 percent for cervical strain, prior to April 1, 2007, is warranted. 8. Entitlement to an increased (compensable) rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael T. Osborne, Associate Counsel INTRODUCTION The veteran had active service from May 1980 to September 1992 and additional U.S. Army Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut, that granted the veteran's claim for service connection for tinnitus, assigning a 10 percent rating effective August 23, 2004 (the date that VA received this claim), granted an increased rating of 30 percent disabling for cervical strain, effective January 14, 2004 (the date of VA treatment records showing increased symptoms), denied an increased (compensable) rating for bilateral hearing loss, and also denied the veteran's claims for service connection for headaches, TBI, a psychiatric disability, to include PTSD, a bilateral shoulder disability, to include as secondary to service-connected cervical strain, and for a lumbar strain. The veteran disagreed with this decision in December 2004 and requested an RO hearing on all of these claims. He perfected a timely appeal on all of these claims in May 2005 and withdrew his RO hearing request later that same month. Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). In an Administrative Decision issued in April 2006, the RO determined that the injuries suffered by the veteran as a result of a motor vehicle accident (MVA) during active service in 1989 were the result of his own willful misconduct. In an April 2006 rating decision, the RO proposed to sever service connection for peripheral neuropathy of the right upper extremity and of the left upper extremity, proposed to reduce the 30 percent rating assigned to the veteran's service-connected cervical strain to zero percent, and also denied the veteran's claim for service connection for a psychiatric disability, to include PTSD. In this decision, the RO noted that VA compensation is precluded for disabilities due to a veteran's own willful misconduct. The veteran disagreed with this decision with respect to the proposal to sever service connection for peripheral neuropathy and requested an RO hearing in May 2006. He subsequently withdrew his RO hearing request in August 2006. In a January 2007 rating decision, the RO severed service connection for peripheral neuropathy of the right upper extremity and of the left upper extremity effective April 1, 2007, and assigned a zero percent rating to the veteran's service-connected cervical strain effective April 1, 2007. In this decision, the RO noted that severance of service connection for cervical strain was not available because service connection had been in effect for cervical strain for more than 10 years. FINDINGS OF FACT 1. The medical evidence shows that the veteran's blood alcohol content was 0.210 at the time of an in-service MVA in 1989; he is presumed to be under the influence of alcohol at the time of this MVA. 2. The veteran's headaches, TBI, psychiatric disability, bilateral shoulder disability, lumbar strain, and cervical strain are all presumed the result of his own willful misconduct at the time of his in-service MVA in 1989. 3. Service connection for cervical strain and bilateral hearing loss has been in effect since September 1992. 4. The veteran's service-connected tinnitus is currently assigned the maximum schedular rating of 10 percent. 5. There is no competent medical evidence to show that the veteran's bilateral shoulder disability was caused or aggravated by service-connected cervical strain. 6. The veteran's service-connected cervical strain is manifested by moderate symptoms and is not productive of ankylosis of the cervical spine. 7. The veteran's service-connected bilateral hearing loss is not compensably disabling. CONCLUSIONS OF LAW 1. The veteran's headaches, TBI, psychiatric disability, to include PTSD, bilateral shoulder disability, and lumbar strain were not incurred or aggravated during active service. 38 U.S.C.A. §§ 105(a), 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.1(m), 3.1(n), 3.303, 3.304 (2006). 2. A bilateral shoulder disability is not proximately due to or the result of service-connected cervical strain. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.310 (2006). 3. There is no legal entitlement for an initial evaluation in excess of 10 percent for tinnitus. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.87, Diagnostic Code (DC) 6260 (2006); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), cert. denied, 127 S.Ct. 1147 (U.S. 2007). 4. The criteria for restoration of a 30 percent rating for cervical strain, effective April 1, 2007, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.105(e), 3.344 (2006). 5. The criteria for an increased rating in excess of 30 percent for cervical strain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.71a, DC 5299-5290 (prior to September 23, 2002); 38 C.F.R. § 4.71a, DC 5299-5290 (prior to September 26, 2003); 38 C.F.R. § 4.71a, DC 5237 (effective from September 26, 2003); 38 C.F.R. §§ 4.1, 4.7, 4.20, 4.27, 4.40, 4.45, 4.59 (2006). 6. The criteria for an increased (compensable) rating for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Tables VI and VII, DC 6100 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) On November 9, 2000, the President signed into law the VCAA. See Pub. L. No. 106-475, 114 Stat. 2096 (2000), codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). The VCAA provides, among other things, for notice and assistance to VA claimants under certain circumstances. VA has issued final rules amending its adjudication regulations to implement the provisions of the VCAA. See generally 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)) (2006). The intended effect of these regulations is to establish clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits or who attempts to reopen a previously denied claim. In order to be consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. This fourth element of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). In Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Veterans Court) held, in part, that a VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently has held that any error with regard to the four elements of VCAA notice is presumptively prejudicial, shifting the burden to VA to show that any such claimed error was not prejudicial to the adjudication of an appealed claim. See Sanders v. Nicholson, No. 06-7001, slip op. at 14 (Fed. Cir. May 16, 2007). During the pendency of this appeal, on March 3, 2006, the Veterans Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. The Veterans Court held that, upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must indicate that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Board finds that VA has met these duties with regard to the claims adjudicated on the merits in this decision. There is no issue as to providing an appropriate application form or completeness of the application. Written notice provided in July and September 2004 and July and September 2005 fulfills the provisions of 38 U.S.C.A. § 5103(a). That is, the veteran was effectively informed to submit all relevant evidence in his possession and received notice of the evidence needed to substantiate his claims, the avenues by which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. See Beverly v. Nicholson¸19 Vet. App. 394, 403 (2005); see also Mayfield v. Nicholson, 19 Vet. App. 103, 109-12 (2005) (Mayfield I) rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The Board recognizes that, according to Pelegrini II, at 119- 20, proper VCAA notice must "precede an initial unfavorable [agency of original jurisdiction (AOJ)] decision on a service-connection claim." Here, the July and September 2004 VCAA notices were furnished to the veteran and his service representative prior to the October 2004 RO decision that is the subject of this appeal. The RO also provided the veteran and his service representative with notice of the Dingess requirements in March 2006. The currently appealed claims were subsequently readjudicated in a supplemental statement of the case (SSOC) issued in April 2006. The Board notes that the April 2006 SSOC contained VCAA notice. The Federal Circuit has held that timing-of-notice errors can be "cured" by notification followed by readjudication. Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006) (Mayfield II); see Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) ("The Federal Circuit specifically mentioned two remedial measures: (1) The issuance of a fully compliant [section 5103(a)] notification, followed by (2) readjudication of the claim."); Pelegrini II, supra, at 122-24 (2004) ("proper subsequent VA process" can cure error in timing of notice). The Veterans Court has held recently that a SSOC that complies with applicable due process and notification requirements constitutes a readjudication decision. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III); see also Prickett, supra (holding that a Statement of the Case that complies with all applicable due process and notification requirements constitutes a readjudication decision). As the April 2006 SSOC complied with the applicable due process and notification requirements for a decision, it constitutes a readjudication decision. Accordingly, the provision of adequate notice followed by a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. Mayfield III, 20 Vet. App. at 541-42, citing Mayfield II, 444 F.3d at 1333-34. In view of the foregoing, the prejudice raised by the timing of the duty to notify the veteran of the Dingess elements is rebutted. While the veteran does not have the burden of demonstrating prejudice, it is pertinent to note that the evidence does not show, nor does the veteran contend, that any notification deficiencies, either with respect to timing or content, have resulted in prejudice. The Board also finds that all necessary assistance has been provided to the appellant. The evidence includes service medical records, private treatment records, and VA medical records, including VA examination reports. There is no indication of any additional relevant evidence that has not been obtained. The veteran was offered the opportunity to testify in support of his claims at a Board hearing, although he declined to do so. The RO obtained records of the veteran's treatment in a private hospital emergency room (ER) at the time of his in- service MVA in 1989. In April 2006, the RO determined that the injuries suffered by the veteran as a result of his in- service MVA in 1989 were the result of his own willful misconduct. The RO noted that, at the time that service connection was granted for cervical strain and a fracture of the left middle finger in June 1993, VA had no information which suggested that the veteran's in-service MVA was the result of his own willful misconduct. However, given the private hospital records showing that, at the time of his in- service MVA, the veteran's BAC was .210, the RO concluded that this established a presumption that the veteran was under the influence of alcohol and that the MVA was the result of his own willful misconduct. See M21-1, Part IV, paragraph 11.04c(2). Thus, there is no duty to provide another examination or a medical opinion. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In view of the foregoing, the Board finds that VA has fulfilled its duty to notify and assist the appellant in the claims under consideration. Adjudication of the claims at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's Service Connection Claims Applicable law and regulations provide that VA compensation shall not be paid if a disability was the result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. §§ 105, 1110 (West 2002); 38 C.F.R. §§ 3.1(n), 3.301(c) (2006). With respect to alcohol and drug abuse, Section 8052 of the Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, § 8052, 104 Stat. 1388, prohibits (effective for claims filed after October 31, 1990) payment of compensation for a disability that is a result of a veteran's own alcohol or drug abuse. Moreover, section 8052 also amended 38 U.S.C. § 105(a) to provide that, with respect to claims filed after October 31, 1990, as in this case, an injury or disease incurred during active service will not be deemed to have been incurred in the line of duty if the injury or disease was a result of the veteran's own willful misconduct, including abuse of alcohol or drugs. See 38 U.S.C.A. § 105; 38 C.F.R. §§ 3.1(n), 3.301. In short, the line of duty presumption is rebuttable where the "preponderance of the evidence" indicates that the veteran's disability was due to his own willful misconduct. Thomas v. Nicholson, 423 F.3d 1279 (Fed. Cir. 2005). Willful misconduct is an act involving conscious wrongdoing or a known prohibited action. Willful misconduct involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Mere technical violation of police regulations or ordinances did not per se constitute willful misconduct and willful misconduct as not determinative unless it is the proximate cause of injury, disease or death. 38 U.S.C.A. § 105(a); 38 C.F.R. § 3.1(n) (2006). When the drinking of an alcoholic beverage to enjoy its intoxicating effects and the intoxication results in disability, it will be considered the result of the person's willful misconduct. 38 C.F.R. § 3.301(c)(2) (2006). In February 1998, VA's General Counsel concluded that, with respect to claims filed after October 31, 1990, 38 U.S.C.A. § 105(a), as amended by section 8052 of OBRA, and as implemented by 38 C.F.R. § 3.1(m), service connection was precluded for a disability resulting from alcohol or drug abuse on the basis of in-service incurrence or aggravation of the claimed disability. See VAOPGCPREC 2-98 (Feb. 10, 1998). The veteran received routine VA outpatient treatment for all of his claimed disabilities during the pendency of this appeal. He has contended that headaches, TBI, psychiatric disability, bilateral shoulder disability, and lumbar strain were all related to his in-service MVA. The veteran also admitted to the VA examiner in January 2006 that he had been drinking at the time of his in-service MVA. A review of emergency room (ER) records at the time of the veteran's MVA in 1989 shows that he was not wearing his seat belt and was out of the vehicle when paramedics arrived at the accident scene. He had injuries to his head, face, right forearm and knee. He had been the driver of the vehicle. On his arrival at the ER, the veteran did not recall the exact event and admitted to drinking alcohol. Physical examination showed multiple forehead lacerations, a normal neck, tenderness to palpation in the right anterior lower ribs, and extreme tenderness to palpation and soft tissue swelling in the lower back. X-rays showed no cervical spine fracture, a fracture of the proximal phalanx of the left middle finger, no chest contusion or rib fracture, and no facial fracture. A review of the veteran's laboratory results showed a blood alcohol content (BAC) of .210 gms/dL. The impression was multiple contusions, status-post MVA. The Board finds that the preponderance of the evidence is against the veteran's claims for service connection for headaches, TBI, a psychiatric disability, to include PTSD, a bilateral shoulder disability, and lumbar strain. The Board acknowledges that the veteran was seriously injured during active service as a result of an MVA in 1989. The evidence shows that veteran admitted to drinking before his in-service MVA both when he was treated in an ER immediately after the MVA and on VA examination in January 2006. Laboratory tests conducted immediately following the veteran's in-service MVA show that his BAC was .210 at that time. Thus, the RO correctly determined in April 2006 that the veteran presumably was under the influence of alcohol at the time of his in-service MVA in 1989. The Board finds that the veteran was operating his motor vehicle in a dangerous manner by drinking and driving and, since he has admitted abusing alcohol at the time of his in- service MVA in 1989, his actions constituted willful misconduct because they "involved deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences." 38 C.F.R. §§ 3.1(n)(1), 3.301(c)(2). Thus, the presumption that any injuries sustained by the veteran as a result of the in-service MVA occurred in the line of duty is rebutted. See 38 C.F.R. § 3.301; see also Thomas, supra. Because service connection is precluded for disabilities that result from a veteran's willful misconduct, and because the veteran's actions at the time of his in-service MVA constituted willful misconduct, the Board determines that service connection must be denied for headaches, TBI, a psychiatric disability, to include PTSD, a bilateral shoulder disability, and for a lumbar strain on a direct service incurrence basis due to a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Secondary Service Connection for a Bilateral Shoulder Disability The veteran also has asserted that his bilateral shoulder disability is due to or the result of his service-connected cervical strain. Although service connection for a bilateral shoulder disability on a direct service incurrence basis is precluded as a matter of law, see Sabonis, supra, because service connection is in effect for cervical strain, the Board also must adjudicate the veteran's claim for service connection for a bilateral shoulder disability as secondary to service-connected cervical strain. Secondary service connection shall be awarded when a disability "is proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). Libertine v. Brown, 9 Vet. App. 521, 522 (1996); see also Reiber v. Brown, 7 Vet. App. 513, 515-16 (1995); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). For valid secondary service connection claims, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the claimed disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). An amendment to 38 C.F.R. § 3.310, effective October 10, 2006, implements the holding in Allen v. Brown, 7 Vet. App. 439 (1995), for secondary service connection on the basis of the aggravation of a nonservice-connected disorder by service-connected disability. See 71 Fed. Reg. 52744 (2006). The amendment essentially codifies Allen by adding language that requires that a baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation. The Board finds that the preponderance of the evidence is against the veteran's claim for service connection for a bilateral shoulder disability as secondary to service- connected cervical strain. The veteran's service medical records are completely negative for any bilateral shoulder complaints and, except for treatment that he received following an in-service MVA in 1989, the veteran was not treated for any bilateral shoulder complaints during active service. On VA examination in November 1992, conducted within 2 months of his discharge from active service in September 1992, his bilateral shoulder muscle strain was considered secondary to the in-service MVA. VA examination in April 2003 resulted in a diagnosis of bilateral shoulder pain. Following VA spine examination in September 2003, the VA examiner stated that the veteran had no shoulder deficits and that his complaints of pain in the upper trapezius muscle were consistent with his service-connected cervical strain and that the pain radiating in to the scapular region also was consistent with his cervical strain. There is no competent contrary opinion of record relating the veteran's bilateral shoulder disability to service-connected cervical strain. Absent evidence of a nexus between the veteran's bilateral shoulder disability and his service-connected cervical strain, the Board finds that service connection for a bilateral shoulder disability as secondary to service- connected cervical strain is not warranted. As to the veteran's assertion of a nexus between a bilateral shoulder disability and his service-connected cervical strain, the Board finds that, as a lay person, the veteran is not competent to opine on medical matters such as the etiology of medical disorders. Accordingly, the veteran's lay statements are entitled to no probative value. See Cromley v. Brown, 7 Vet. App. 376, 379 (1995); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Higher Initial Evaluation for Tinnitus The veteran's service-connected tinnitus has been evaluated as 10 percent disabling since August 23, 2004 (the date that VA received this claim). He appeals for a higher initial rating. See Fenderson, supra. Tinnitus is evaluated under Diagnostic Code 6260, which was revised effective June 23, 2003, to clarify existing VA practice that only a single 10 percent evaluation is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Diagnostic Code (DC) 6260, Note 2 (2006). There is no provision for assignment of a separate 10 percent evaluation for tinnitus of each ear under DC 6260. 38 C.F.R. § 4.87, DC 6260 (2006). In Smith v. Nicholson, 19 Vet. App. 63 (2005), the Veterans Court reversed a Board decision that found that, under pre- June 2003 regulations, no more than a single 10 percent rating could be provided for tinnitus, whether perceived as bilateral or unilateral. The Veterans Court held that the pre-1999 and pre-June 23, 2003, versions of DC 6260 required that VA assign dual 10 percent ratings for "bilateral" tinnitus where it was perceived as affecting both ears. VA appealed Smith to the Federal Circuit. Recently, the Federal Circuit reversed the Veterans Court's decision in Smith and affirmed VA's long-standing interpretation of DC 6260 as authorizing only a single 10 percent rating for tinnitus, whether perceived as unilateral or bilateral. Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), cert. denied, 127 S.Ct. 1147 (U.S. 2007). Citing Supreme Court precedent, the Federal Circuit explained in Smith that an agency's interpretation of its own regulations was entitled to substantial deference by the courts as long as that interpretation was not plainly erroneous or inconsistent with the regulations. Finding that there was a lack of evidence in the record suggesting that VA's interpretation of DC 6260 was plainly erroneous or inconsistent with regulations, the Federal Circuit concluded that the Veterans Court had erred in not deferring to VA's interpretation. In view of the foregoing, the Board concludes that the version of DC 6260 in effect prior to June 2003 precludes a schedular evaluation in excess of a single 10 percent rating for tinnitus. Therefore, the veteran's claim for a higher initial rating than 10 percent for his service-connected tinnitus must be denied under both the new and old versions of DC 6260. Accordingly, this claim must be denied based on a lack of entitlement under the law. See Sabonis, supra. Rating Restoration for Cervical Strain As noted in the Introduction, service connection for cervical strain has been in effect since September 30, 1992. The veteran's service-connected cervical strain was evaluated as 30 percent disabling prior to April 1, 2007, when the RO reduced the rating to zero percent. He appeals for restoration of the 30 percent rating for cervical strain prior to April 1, 2007. Under 38 C.F.R. § 3.105(e), where the reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken, and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e) (2006). Under 38 C.F.R. § 3.344, when the evidence indicates that a condition has stabilized to the point that a particular rating has continued for a long period of time (five years or more), and an examination indicates improvement in the condition, the rating agency must review the entire record of examinations and the medical-industrial history in order to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. In arriving at a determination that there is material improvement in a physical or mental condition, the rating agency must consider whether the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344 (2006). The provisions of 38 C.F.R. § 3.344(a) and (b) apply to ratings which have continued for long periods at the same level (five years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. 38 C.F.R. § 3.344(c). The Board finds that the criteria for restoration of a 30 percent rating for cervical strain have been met. Initially, the Board notes that RO met all due process requirements with respect to the rating reduction for service-connected cervical strain. As noted in the Introduction, in an April 2006 rating decision, the RO proposed to reduce the 30 percent rating for service- connected cervical strain to zero percent on the basis that compensation was prohibited for disability resulting from willful misconduct and the veteran's cervical strain had been incurred as a result of his own willful misconduct in an in- service MVA in 1989. The veteran and his service representative were notified of this decision on April 27, 2006, and provided a 60-day response period. No additional evidence was submitted. Thus, in a January 2007 rating decision, the RO reduced the rating assigned to service- connected cervical strain to zero percent effective April 1, 2007. In this decision, the RO again noted that the basis for the rating reduction was the determination that the veteran's cervical strain was the result of his own willful misconduct in an in-service MVA in 1989. Although the veteran incurred his cervical strain as a result of his own willful misconduct, the Board finds that the 30 percent rating for cervical strain must be restored. There is no statutory or regulatory provision permitting reduction of a disability rating solely on the basis of willful misconduct. There is no allegation of fraud or misrepresentation by the veteran when he filed for service connection for cervical strain or when he was awarded a 30 percent rating for service-connected cervical strain such that a reduction might be warranted. Instead, it appears that the RO improperly reduced the rating assigned to the veteran's service-connected cervical strain effective April 1, 2007, after concluding that the original cervical strain injury was the result of his own willful misconduct. Although the Board is reluctant to reward the veteran for actions that constituted willful misconduct, the fact remains that there is no objective medical evidence of a permanent improvement in the veteran's service-connected cervical strain such that the rating reduction was proper. Significantly, the Board notes that the RO did not review any medical evidence in the January 2007 rating decision when it reduced the assigned rating for service-connected cervical strain. Accordingly, in the absence of objective medical evidence showing improvement, the Board finds that the 30 percent rating for cervical strain should be restored. Increased Rating for Cervical Strain The veteran's service-connected cervical strain has been evaluated as 30 percent disabling from January 14, 2004 (the date of VA treatment records showing increased symptoms), to April 1, 2007 (the date that VA reduced the assigned rating to zero percent). He appeals for a higher rating. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from service-connected disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2006). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2006). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Although medical reports must be interpreted in light of the whole recorded history, the primary concern in a claim for an increased evaluation for a service-connected disability is the present level of disability. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). If a veteran has separate and distinct manifestations relating to the same injury, he or she should be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). However, the evaluation of the same manifestation under different diagnostic codes is to be avoided. 38 C.F.R. § 4.14 (2006). The Rating Schedule may not be employed as a vehicle for compensating a claimant twice or more for the same symptomatology, since such a result would overcompensate the claimant for the actual impairment of his earning capacity and would constitute pyramiding. See Esteban, supra, citing Brady v. Brown, 4 Vet. App. 203 (1993). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2006). Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40 (2006). Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. 38 C.F.R. § 4.45 (2006). VA must consider "functional loss" of a musculoskeletal disability separately from consideration under the diagnostic codes; "functional loss" may occur as a result of weakness, fatigability, incoordination or pain on motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). VA must consider any part of the musculoskeletal system that becomes painful on use to be "seriously disabled." With any form of arthritis, painful motion is an important factor of disability. It is the intention of the Rating Schedule 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 (2006). For purposes of rating disability from arthritis, the cervical vertebrae are considered groups of minor joints ratable on a parity with major joints. See 38 C.F.R. § 4.45(f). Prior to September 26, 2003, disabilities manifested by limitation of motion of the cervical spine were evaluated under DC 5290. As relevant to this appeal, the maximum 30 percent evaluation was assigned to the veteran's service- connected cervical strain under DC 5299-5290 based on the veteran's severe limitation of motion of the cervical spine. See 38 C.F.R. § 4.71a, DC 5299-5290. Under the former DC 5287, an evaluation of 30 percent disabling was available for favorable ankylosis of the cervical spine. The maximum evaluation of 40 percent disabling was available for unfavorable ankylosis of the cervical spine. See 38 C.F.R. § 4.71a, DC 5287 (prior to September 26, 2003). Effective September 26, 2003, VA revised the criteria for rating spinal disorders. See 68 Fed. Reg. 51454-51458 (August 27, 2003). These revisions consist of a new rating formula termed General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) and encompass such disabling symptoms as pain, ankylosis, limitation of motion, muscle spasm, and tenderness. The new diagnostic code numbers are DC's 5235-5243 and include DC 5237 for cervical strain and DC 5240 for ankylosing spondylitis. Review of the General Rating Formula shows that it provides that, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residual of injury or disease, an evaluation of 30 percent is available for forward flexion of the cervical spine 15 degrees or less or favorable ankylosis of the entire cervical spine. An evaluation of 40 percent is available for unfavorable ankylosis of the entire cervical spine. A 50 percent evaluation may be assigned in cases of unfavorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a, DC's 5235-5243 (2006). Notes appended to the General Rating Formula specify that, for VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Id., Note (2). Provided, however, that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion generally recognized by VA. Id., Note (3). Further, the term "combined range of motion" refers to the sum of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees. Each range of motion measurement is to be rounded to the nearest five degrees. Id., Notes (2) and (4). Associated objective neurological abnormalities (e.g., bladder and bowel impairment) are to be evaluated separately. Id., Note (1). On VA examination in September 2003, the veteran complained of constant cervical spine pain. The veteran also complained of flare-ups of cervical spine pain, which he described as shooting pain in to his arms when changing his neck position. The veteran was working part-time and was able to perform his job, although he had some difficulty with lifting. Physical examination showed side bending right and left was significant restricted to 30 degrees bilaterally, rotation right and left was restricted with significant increasing pain at the end ranges, forward flexion was limited to 30 degrees, and extension was limited at 10 degrees, with pain on palpation of the bilateral lower cervical paraspinal muscles and in to the upper trapezius muscles bilaterally. X-rays of the cervical spine showed a blocked vertebrae at C2-C3, congenital in nature. The VA examiner stated that the veteran's examination was consistent with chronic cervical strain with intermittent radicular complaints. There was no evidence of degenerative joint disease of the spine. The diagnosis was severe restriction of range of motion of the cervical spine with indistinct sensory loss and full strength. On VA spine examination in September 2004, the veteran denied any flare-ups but complained of constant cervical spine pain. He stated that his cervical spine pain had limited his employment. Physical examination showed that cervical spine range of motion was limited by pain, forward flexion and extension were each limited to 10 degrees, left and right lateral flexion were limited to 20 degrees, left and right lateral rotation were limited to 40 degrees, and there was additional limitation of motion on repetitive use. There were no postural abnormalities and no fixed spinal deformity. The impression was cervical spine degenerative joint disease which was at least as likely as not related to the veteran's service-connected cervical strain and post-traumatic arthritic changes that were as likely as not related to the veteran's in-service MVA. On VA neurology examination in September 2004, x-rays of the veteran's cervical spine showed degenerative disc disease at multiple levels from C3 through C7, abnormal curvature of the cervical spine, and no definite evidence of instability. The neurologist's impression was post-traumatic intermittent neck and radicular pain, with pain likely related to foraminal stenosis, in addition to multi-level degenerative disease. The Board finds that the preponderance of the evidence is against the veteran's claim for an increased rating in excess of 30 percent for cervical strain. The objective medical evidence shows that, although the range of motion of the veteran's cervical spine was severely restricted in September 2003, there was no evidence of degenerative joint disease of the spine and there was full muscle strength. The veteran was assigned a 30 percent rating for cervical strain due to his limited forward flexion of 10 degrees. Although degenerative disc disease of the cervical spine was shown on subsequent x-rays in September 2004, there was no definite evidence of spinal instability and the VA examiner diagnosed intermittent neck pain, likely related to foraminal stenosis. Although there is objective evidence that the veteran experiences additional limitation of motion due to pain on repetitive use of his cervical spine, see DeLuca, supra, there is no evidence of a fixed spinal deformity or postural abnormalities (such as favorable or unfavorable ankylosis) such that an increased rating in excess of 30 percent is warranted. Absent objective medical evidence of ankylosis, the Board finds that an increased rating in excess of 30 percent for cervical strain is not warranted. The Board notes that there is no medical evidence of neurological abnormalities related to the veteran's service- connected cervical strain to include, but not limited to, bowel or bladder impairment such that he is entitled to a separate disability evaluation for any such abnormalities under the appropriate diagnostic code. See 38 C.F.R. § 4.71a, Note 1. The potential application of various provisions of Title 38 of the Code of Federal Regulations have been considered whether or not they were raised by the veteran as required by Schafrath, supra. The veteran was employed at least part- time and reported that he was able to do his part-time job, with occasional difficulty lifting, in September 2003. The evidence of record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1) (2006). In this regard, the Board finds that there has been no showing by the veteran that his cervical strain has resulted in marked interference with his employment or necessitated frequent periods of hospitalization beyond that contemplated by the rating schedule. In the absence of such factors, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Increased Rating for Bilateral Hearing Loss The veteran's service-connected bilateral hearing loss has been evaluated as zero percent disabling since September 30, 1992 (the day after the date of the veteran's discharge). He appeals for an increased (compensable) rating. Ratings for hearing impairment are found in 38 C.F.R. § 4.85 through § 4.87, which contain the governing provisions, tables, and diagnostic codes. An evaluation of the degree of hearing impairment requires results from an audiological examination, which must include a controlled speech discrimination test (Maryland CNC) and a puretone auditory test conducted by a state-licensed audiologist. 38 C.F.R. § 4.85(a); see Acevedo-Escobar v. West, 12 Vet. App. 9, 10 (1998) (noting that disability rating assignments are based on average scores of puretone decibel loss and percent of speech discrimination); but see 38 C.F.R. §§ 4.85(c), 4.86 (permitting ratings by using only the pure-tone auditory threshold test scores in certain circumstances). Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," uses calculations from these two tests to determine a Roman numeral designation, which represents auditory acuity levels ranging from I, indicating essentially normal hearing, to XI, signifying profound deafness. 38 C.F.R. § 4.85(b) & Table VI. The horizontal rows in Table VI represent nine categories based upon percentage of discrimination in the controlled speech discrimination test, whereas the vertical columns in Table VI represent nine categories of hearing loss based upon the puretone audiometry test. 38 C.F.R. § 4.85(b) & Table VI. The applicable Roman numeral designation in any given case is determined by applying these test figures to Table VI and using the designation found at the intersection of those two figures. 38 C.F.R. § 4.85(b) & Table VI; see Acevedo-Escobar, supra (noting that the Board simply must apply the scores provided by the exam to the slots in Table VI to calculate the Roman numeral designation for hearing loss). Once a Roman numeral designation from Table VI is assigned to each ear, the Board looks to Table VII, "Percentage Evaluation for Hearing Impairment (Diagnostic Code 6100)," to determine the disability rating. 38 C.F.R. § 4.85(e); see Acevedo-Escobar, 12 Vet. App. at 10. Horizontal rows in Table VII represent the ear with better hearing and vertical columns represent the ear with poorer hearing. 38 C.F.R. § 4.85(e) & Table VII. The Board determines the disability rating under Table VII in a similar mechanical fashion as it assesses the Roman numeral designations under Table VI. 38 C.F.R. § 4.85(e) & Table VII; accord Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992) (stating that the Board assigns disability ratings for hearing impairment through a mechanical application of the rating schedule to the Roman numeral designations allotted after audiometric evaluations). The Roman numeral designations for hearing impairment based solely on the puretone threshold average are set out in 38 C.F.R. § 4.85(c), which governs application of Table VIa. 38 C.F.R. § 4.85(c). This regulation provides, "Table VIa will be used when . . . indicated under the provisions of § 4.86." 38 C.F.R. § 4.85(c). In turn, 38 C.F.R. § 4.86 provides, "(a) When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately." 38 C.F.R. § 4.86(a). Subsection (b) of § 4.86 states, "[w]hen the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately." 38 C.F.R. § 4.86(b). The objective medical evidence submitted since the veteran filed his increased rating claim for bilateral hearing loss consists of his VA audiology examination in September 2004. At that time, the veteran's puretone threshold average was 43 in the right ear and 29 in the left ear. His speech recognition score was 100 percent bilaterally. Applying the evaluation criteria for hearing impairment (outlined above) to these audiometric testing results, each of the veteran's ears is assigned an evaluation of "I" and this results in a zero percent (non-compensable) disability evaluation. See 38 C.F.R. § 4.85, Tables VI and VII. Further, there is no evidence of an exceptional pattern of hearing impairment in either ear such that the provisions of 38 C.F.R. § 4.86 are applicable. Accordingly, the Board finds that the veteran is not entitled to an increased (compensable) rating for bilateral hearing loss. See Lendenmann, 3 Vet. App. at 349. Conclusion Since service connection is precluded for any disability resulting from a veteran's own willful misconduct, the Board finds that service connection for headaches, TBI, a psychiatric disability, to include PTSD, a bilateral shoulder disability, and for a lumbar strain is not warranted on a direct service incurrence basis. The Board also finds that service connection for a bilateral shoulder disability as secondary to service-connected cervical strain is not warranted as there is no competent medical opinion indicating that the veteran's bilateral shoulder pain is proximately due to or the result of his service-connected cervical strain. See Allen, supra. As the veteran is receiving the maximum 10 percent rating for tinnitus, a higher initial evaluation is not warranted. See Smith, supra. The Board finds that restoration of a 30 percent rating for cervical strain effective April 1, 2007, is warranted as there is no objective medical evidence showing permanent improvement in this disability. The preponderance of the evidence is against an increased rating in excess of 30 percent for cervical strain and an increased (compensable) rating for bilateral hearing loss. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER The veteran's headaches, traumatic brain injury (TBI), psychiatric disability, to include post-traumatic stress disorder (PTSD), bilateral shoulder disability, and lumbar strain were all the result of his own willful misconduct; therefore, service connection for headaches, TBI, a psychiatric disability, to include PTSD, a bilateral shoulder disability, and for a lumbar strain is denied. Entitlement to service connection for a bilateral shoulder disability as secondary to service-connected cervical strain is denied. A higher initial rating than 10 percent for tinnitus is denied. Restoration of a 30 percent rating for cervical strain, effective April 1, 2007, is granted. An increased rating in excess of 30 percent for cervical strain is denied. An increased (compensable) rating for bilateral hearing loss is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs