Citation Nr: 0007402 Decision Date: 03/20/00 Archive Date: 03/23/00 DOCKET NO. 95-09 193 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether the veteran submitted an adequate substantive appeal concerning the issue of entitlement to a disability rating in excess of 10 percent for service-connected residuals of a right middle finger injury, on appeal from the initial grant of service connection. 2. Whether the veteran submitted a timely substantive appeal concerning the issue of entitlement to service connection for pigmentary desperiva syndrome. 3. Whether the veteran submitted a timely substantive appeal concerning the issue of entitlement to service connection for impotence claimed as secondary to service-connected prostatitis. 4. Whether the veteran submitted a timely notice of disagreement (NOD) concerning the issue of entitlement to a compensable disability rating for service-connected erythematous maculopapular rash/chronic dermatitis, on appeal from the initial grant of service connection. 5. Whether the veteran submitted a timely NOD concerning the issue of entitlement to a disability rating in excess of 30 percent for service-connected coronary artery disease, status post percutaneous transluminal coronary angioplasty, with hypertension, on appeal from the initial grant of service connection. 6. Entitlement to service connection for residuals of a head injury, including scars and headaches. 7. Entitlement to a compensable disability rating for service-connected bilateral hearing loss with tinnitus, on appeal from the initial grant of service connection, to include whether a separate disability evaluation is warranted for tinnitus. 8. Entitlement to a disability rating in excess of 40 percent for service-connected lumbosacral spine stenosis with degenerative joint disease and small disc herniation at L5- S1, on appeal from the initial grant of service connection, to include the issue of entitlement to an extraschedular evaluation. 9. Entitlement to a disability rating in excess of 10 percent for service-connected prostatitis, on appeal from the initial grant of service connection. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P.M. DiLorenzo, Counsel INTRODUCTION The veteran served on active duty from March 1966 to May 1994. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a February 1995 rating decision of the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO), that denied entitlement to service connection for residuals of a head injury and granted entitlement to service connection for hearing loss, prostatitis, and low back pain, each evaluated as noncompensable, effective June 1, 1994, the day following the veteran's separation from service. In a September 1997 rating decision, the RO granted entitlement to service connection for tinnitus as part of the service-connected hearing loss and confirmed the noncompensable rating. The RO also awarded a 10 percent disability rating for service-connected prostatitis and 40 percent disability rating for service-connected lumbosacral spine stenosis with degenerative joint disease and small disc herniation at L5-S1, effective June 1, 1994. The veteran submitted duplicate copies of medical evidence directly to the Board in October 1999. Because he waived RO consideration of this evidence, a remand to the RO is not warranted. See 38 C.F.R. § 20.1304(c) (1999). The claims of entitlement to service connection for residuals of a head injury on the merits and entitlement to a disability rating in excess of 10 percent for service- connected prostatitis, on appeal from the initial grant of service connection, are the subject of the remand immediately following this decision. FINDINGS OF FACT 1. In February 1995, the RO granted entitlement to service connection for residuals of a right middle finger injury, evaluated as noncompensable. The veteran was notified of this decision by a letter dated February 24, 1995. 2. An NOD addressing the issue of the disability rating assigned for service-connected residuals of a right middle finger injury was received at the RO on March 2, 1995. 3. The RO issued a statement of the case (SOC) on April 11, 1995, addressing the issue of the disability rating assigned for service-connected residuals of a right middle finger injury. 4. The veteran's VA Form 9 received on April 20, 1995, did not discuss any errors of fact or law regarding the disability rating assigned for service-connected residuals of a right middle finger injury. 5. In October 1996, the RO denied entitlement to service connection for pigmentary desperiva syndrome and entitlement to service connection for impotence as secondary to service- connected prostatitis. A control document and award letter indicates that the veteran was notified of this decision by letter dated November 4, 1996. 6. The veteran expressed disagreement with the RO's October 1996 rating decision denying entitlement to service connection for pigmentary desperiva syndrome and entitlement to service connection for impotence as secondary to service- connected prostatitis at his personal hearing at the RO on February 13, 1997. 7. An SOC addressing the issues of entitlement to service connection for pigmentary desperiva syndrome and entitlement to service connection for impotence as secondary to service- connected prostatitis was issued on September 29, 1997. 8. The veteran did not file a substantive appeal addressing the issues of entitlement to service connection for pigmentary desperiva syndrome and entitlement to service connection for impotence as secondary to service-connected prostatitis within 60 days from September 29, 1997, or by November 28, 1997. 9. In April 1995, the RO granted entitlement to service connection for an erythematous maculopapular rash, evaluated as noncompensable. The veteran was notified of the RO's decision and of his appellate rights by letter dated May 9, 1995. 10. An NOD was not received within one year of the May 9, 1995, letter notifying the veteran of the April 1995 allowance of service connection for an erythematous maculopapular rash, evaluated as noncompensable. 11. In July 1995, the RO granted entitlement to service connection for coronary artery disease, status post percutaneous transluminal coronary angioplasty, with hypertension, evaluated as 30 percent disabling. A control document and award letter indicates that the veteran was notified of this decision by letter dated July 5, 1995. 12. An NOD was not received within one year of the July 5, 1995, letter notifying the veteran of the July 1995 allowance of service connection for coronary artery disease, status post percutaneous transluminal coronary angioplasty, with hypertension, evaluated as 30 percent disabling. 13. The veteran's claim for service connection for residuals of a head injury is plausible. 14. Since the grant of service connection, the veteran's bilateral hearing loss has been manifested by a range from Level I hearing loss in both ears to Level II hearing loss in the right ear with Level III hearing loss in the left ear. 15. The veteran's service-connected tinnitus is manifested by constant ringing. 16. The veteran's service-connected lumbosacral spine stenosis with degenerative joint disease and small disc herniation at L5-S1 is manifested by complaints of back spasms and lower back pain radiating into the right leg with tingling and numbness at times; and objective evidence of decreased range of motion with pain; mild muscle spasms; positive straight leg raising test; and moderate to severe functional loss due to pain. 17. The veteran's service-connected lumbosacral spine stenosis with degenerative joint disease and small disc herniation at L5-S1 does not present an exceptional or unusual disability picture rendering impracticable the application of the regular schedular rating criteria. CONCLUSIONS OF LAW 1. An adequate substantive appeal of the claim of entitlement to an initial disability rating in excess of 10 percent for service-connected residuals of a right middle finger injury was not filed, and the Board lacks jurisdiction to consider this issue. 38 U.S.C.A. §§ 7105, 7108 (West 1991); 38 C.F.R. §§ 20.200, 20.202, 20.203 (1999). 2. Timely substantive appeals of the claims of entitlement to service connection for pigmentary desperiva syndrome and for impotence as secondary to service-connected prostatitis were not filed, and the Board lacks jurisdiction to consider these issues. 38 U.S.C.A. §§ 7105, 7108 (West 1991); 38 C.F.R. §§ 20.200, 20.202, 20.300, 20.302(b), 20.303 (1999). 3. A timely NOD was not received regarding the RO's April 1995 rating decision allowing service connection for an erythematous maculopapular rash, evaluated as noncompensable, and the Board lacks jurisdiction to consider this issue. 38 U.S.C.A. §§ 7105, 7108 (West 1991); 38 C.F.R. §§ 20.200, 20.201, 20.302(a) (1999). 4. A timely NOD was not received regarding the RO's July 1995 rating decision allowing service connection for coronary artery disease, status post percutaneous transluminal coronary angioplasty, with hypertension, evaluated as 30 percent disabling, and the Board lacks jurisdiction to consider this issue. 38 U.S.C.A. §§ 7105, 7108 (West 1991); 38 C.F.R. §§ 20.200, 20.201, 20.302(a) (1999). 5. The veteran has stated a well-grounded claim for service connection for residuals of a head injury. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103 (1999). 6. The criteria for a compensable disability rating for the veteran's service-connected bilateral hearing loss have not been met since the initial grant of service connection. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.85, 4.87, Diagnostic Code 6100 (1998); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.85, 4.87, Diagnostic Code 6100 (1999). 7. The criteria for the assignment of a separate 10 percent disability rating, and not higher, for tinnitus, effective June 1, 1994, have been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.87a, Diagnostic Code 6260 (1999). 8. The criteria for an initial disability evaluation in excess of 40 percent for the veteran's service-connected lumbosacral spine stenosis with degenerative joint disease and small disc herniation at L5-S1 are not met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5285, 5286, 5289, 5292, 5293, 5295 (1999). 9. The evidence does not warrant referral for consideration of an extraschedular rating for the veteran's service- connected lumbosacral spine stenosis with degenerative joint disease and small disc herniation at L5-S1. 38 C.F.R. § 3.321(b)(1) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual background Service medical records disclose recurrent problems with the veteran's low back over the years. In early December 1968, he was knocked unconscious momentarily when he landed on his forehead in the bunker during an attack. He complained of being slightly dizzy with a slight headache. There was an abrasion on his forehead. The head laceration was described as okay. One hour later, he reported that he felt much better with decreased vertigo. The headache was gone. The veteran complained of, inter alia, headaches in January, May and December 1971. The impressions were acute viral syndrome, sinusitis and flu syndrome, respectively. On report of medical history in September 1976, the veteran gave a history of a head injury. On reports of medical history in November 1979 and October 1980, the veteran reported frequent or severe headaches. He gave a history of head injuries in 1969 (hitting his head on a bunker) and 1973 (occipital area). Neurologic evaluation was normal. In July 1984, the veteran sought treatment for headaches between his eyes for one to two weeks. He gave a history of similar headaches in the past. The examiner's assessment was headache. On examination in January 1985, the veteran reported a history of sinus pressure and headaches. The examiner diagnosed an upper respiratory infection (URI). In January 1986, the veteran complained of frontal headaches which persisted despite medication. The examiner diagnosed URI with bronchitis. In April 1988, the veteran's blood pressure was not well controlled. At that time, he complained of headaches. He again complained of occasional bitemporal headaches relieved by high doses of medication in August 1988. The assessment was diastolic pressure, not well controlled. The veteran next complained of headaches, body aches, chills, etc. in February 1989. He was diagnosed as having a viral syndrome. The veteran complained of headaches and a head cold in February 1993. The assessment was maxillary sinusitis. He again reported headaches in April 1993. After his separation from service, the veteran was afforded a VA general medical examination in July 1994. He gave a history of lower back spasms for which he took medications as needed. He also participated in physical therapy. The back pain reportedly radiated to both buttocks. The examiner noted no significant abnormalities of posture and gait. Examination of the thoracolumbar spine revealed no evidence of any tenderness over the lumbosacral spine. There was slight tenderness to the right of the lumbosacral spine. The paravertebral musculature was normal. No deformity was noted. The veteran had full range of motion of the thoracolumbar spine with no evidence of pain or paravertebral muscle spasm. He had normal motor status, coordination and reflexes. X-rays of the lumbosacral spine revealed degenerative changes. The examiner diagnosed degenerative spondylosis of the lumbar spine. The veteran sought treatment for back pain at Maxwell Air Force Base (MAFB) Hospital in November 1994. The pain radiated down his legs, worse on the right. The pain interfered with sleep, and the veteran found it difficult to walk. The examiner noted slight lower lumbar tenderness. Straight leg raising was positive on the right. X-rays of the lumbar spine revealed an old L1 mild compression. The impression was low back pain. Upon VA audiological examination in February 1995, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 20 40 40 LEFT 15 5 40 50 40 Pure tone average for the right ear was 28 dB, and for the left it was 34 dB. Thresholds were believed to represent true organic acuity. Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 96 in the left ear. The veteran also complained of bilateral, constant tinnitus. It kept him awake at times and interfered with his ability to concentrate. It was described as a high frequency ringing and as severe. In a February 1995 rating decision, the RO, inter alia, granted entitlement to service connection for residuals of a right middle finger injury, hearing loss, and low back pain, each evaluated as noncompensable, effective June 1, 1994, the day following the veteran's separation from active service. The RO notified the veteran of this decision by a letter dated February 24, 1995, with an attached copy of the rating decision. An NOD addressing, inter alia, the issue of entitlement to a compensable disability rating for service-connected residuals of a right middle finger injury was received at the RO on March 2, 1995. In a Statement in Support of Claim received at the RO on March 10, 1995, the veteran requested that he be scheduled for a personal hearing at the RO, with reference to the February 24, 1995, letter from the RO. The RO issued an SOC addressing the issue of entitlement to a compensable disability rating for service-connected residuals of a right middle finger injury on April 11, 1995. A blank VA Form 9 was received on April 20, 1995. There was no reference to the residuals of a right middle finger injury claim. In April 1995, the RO granted entitlement to service connection for an erythematous maculopapular rash, evaluated as noncompensable. The veteran was notified of the RO's decision and of his appellate rights by letter dated May 9, 1995. In July 1995, the RO granted entitlement to service connection for coronary artery disease, status post percutaneous transluminal coronary angioplasty, with hypertension, evaluated as 30 percent disabling. The veteran was previously service connected only for hypertension. A control document and award letter indicated that the veteran was notified of this decision by letter dated July 5, 1995. He did not submit NODs to the RO by May 9, 1996, and July 5, 1996, respectively. Magnetic resonance imaging (MRI) of the veteran's lumbar spine taken at University of Alabama, Birmingham, Hospital in August 1995 showed lumbar spinal stenosis and a small disc herniation centrally at L5-S1. VA treatment records dated in September 1995 showed range of motion of the lumbar spine as follows: forward flexion to 30 degrees, right lateral bending to 30 degrees, and left lateral bending to 40 degrees. A written statement was received at the RO on September 1, 1995, addressing several issues; however, there was no reference to the residuals of a right middle finger injury claim. The RO received no correspondence after issuing the SOC that indicated any continued disagreement with the denial of the foregoing claim between April 11, 1995, and February 24, 1996. The veteran was afforded a VA spine examination in July 1996. He complained of low back pain over the years. He had back spasms if he sat in a chair for a few hours. The pain radiated down the posterior right thigh and to the lateral aspect of the right calf. He was reportedly advised to wear a back brace and had continued low back discomfort. On examination, there were no postural abnormalities and no fixed deformity. The musculature of the back was described as well nourished. Range of motion of the lumbosacral spine was as follows: forward flexion to 45 degrees; backward extension to 10 degrees; lateral flexion to 20 degrees bilaterally; and rotation to 30 degrees bilaterally. There was objective evidence of pain on flexion. The veteran did not appear to have any pain on extension, lateral flexion, or rotation. Neurologically, he had no motor or sensory loss. He had positive straight leg raising reflexes at 30 degrees on the right and 45 degrees on the left. He had no other localizing or lateralizing signs. The examiner diagnosed lower back pain with lumbar spinal stenosis. In an October 1996 rating decision, the RO denied entitlement to service connection for pigmentary desperiva syndrome and entitlement to service connection for impotence as secondary to service-connected prostatitis. A control document and award letter indicated that the veteran was notified of this decision by letter dated November 4, 1996. The veteran testified at a personal hearing at the RO in February 1997. He maintained that he had migraine headaches as a result of an inservice head injury in 1969 or as a result of inservice high blood pressure. He also reportedly had scars from the inservice head injury. Concerning the severity of his back disorder, he stated that he had trouble bending, pain, spasms, and numbness in the right leg. He wore a back brace and was always uncomfortable. He was not able to exercise and the pain interfered with his sleep. The veteran further testified that he had tinnitus, described as a constant ringing, which interfered with conversation and kept him awake at night. Testimony presented at the personal hearing in February 1997 also expressed disagreement with the RO's October 1996 rating decision denying entitlement to service connection for pigmentary desperiva syndrome and entitlement to service connection for impotence as secondary to service-connected prostatitis and the disability ratings assigned for the service-connected erythematous maculopapular rash and coronary artery disease. On VA spine examination in August 1997, the veteran reported taking medication three times a day and using a back brace when sitting and driving. His complaints included back spasms and lower back pain radiating into the right leg with tingling and numbness at times. The examiner noted that the veteran was in no distress. There were no postural abnormalities or fixed deformity. Mild muscle spasms were noted in the lumbosacral area. Range of motion of the lumbosacral spine was as follows: forward flexion to 20 degrees; backward extension to 20 degrees; lateral flexion to 30 degrees bilaterally; and rotation to 20 degrees bilaterally. There was pain with forward bending and lateral movements. Straight leg raising test was positive bilaterally at about 30 degrees and was associated with low back pain. Gait revealed no abnormalities. The veteran could not perform toe and heel walking, as he stated that it caused back discomfort. Deep tendon reflexes were symmetrical bilaterally. X-rays of the lumbar spine showed a minimal wedging deformity of L1 and narrowing of L5-S1. The examiner diagnosed lumbar spine stenosis, especially at L4-L5 on MRI, and small disc herniation at L5-S1. The examiner stated that functional loss due to pain was moderate to severe. The veteran underwent VA disease/injuries of the brain examination in August 1997. He gave a history of migraine headaches since an inservice head injury in 1969. Physical examination was normal. There was normal muscle strength and deep tendon reflexes. Gait was normal. The examiner diagnosed a "History of injury to the head in the past and headaches since then." On VA audiological examination in September 1997, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 25 45 45 LEFT 15 15 40 55 35 Pure tone average in the right ear was 33 dB, and in the left ear it was 36 dB. Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 80 percent in the left ear. The veteran complained of bilateral, constant tinnitus that kept him awake at night. In September 1997, the RO assigned a 10 percent disability rating for the service-connected residuals of a right middle finger injury and a 40 percent disability rating for service- connected lumbar spine stenosis with degenerative joint disease and small disc herniation at L5-S1, effective from June 1, 1994. The RO also granted entitlement to service connection for tinnitus as part of service-connected bilateral hearing loss and continued the noncompensable disability rating, effective from June 1, 1994. The veteran's service-connected erythematous maculopapular rash was recharacterized as chronic dermatitis. The RO issued a supplemental statement of the case (SSOC) addressing the issues of entitlement to service connection for pigmentary desperiva syndrome and entitlement to service connection for impotence as secondary to service-connected prostatitis on September 29, 1997. A substantive appeal was not received by November 28, 1997. The Board wrote to the veteran in January 2000 notifying him of its intention to consider issues of the adequacy of the allegations of error of fact or law in a substantive appeal regarding the issue of entitlement to a higher rating for service-connected residuals of a right middle finger injury; the timeliness of the filing of a substantive appeal regarding the issues of entitlement to service connection for pigmentary desperiva syndrome and impotence claimed as secondary to service-connected prostatitis; and the timeliness of NODs regarding the issues of entitlement to a compensable disability rating for a service-connected erythematous maculopapular rash and entitlement to a disability rating in excess of 30 percent for service- connected coronary artery disease, status post percutaneous transluminal coronary angioplasty. A copy of the letter was sent to the veteran's representative. The Board further informed the veteran that he had 60 days within which to present written argument or request a hearing to present oral argument on the question of timeliness of the appeal. The veteran's representative responded to the January 2000 letter. He stated that the veteran's March 1995 request for a personal hearing at the RO showed his intent to continue the appeal regarding the issue of entitlement to a higher rating for service-connected residuals of a right middle finger injury, that the hearing officer in February 1997 did not challenge the adequacy of the appeal, and that dismissal of this issue by the Board would violate the veteran's due process rights. The representative further argued that the veteran's request for a personal hearing may be reasonably construed as a request for an extension of time in which to file a substantive appeal, and further cited to 38 C.F.R. §§ 3.109 and 20.202, Rowell v. Principi, 4 Vet. App. 9 (1993), and VAOPGCADV 28-96. II. Legal analysis A. Adequate and/or timely appeals and NODs 1. General The law provides that ". . . questions as to timeliness or adequacy of response shall be determined by the Board of Veterans' Appeals." 38 U.S.C.A. § 7105(d)(3) (West 1991); see VAOPGCPREC 9-99 (August 18, 1999). The initial question that must be resolved is whether the Board has jurisdiction to consider the foregoing issues. In January 2000, the veteran and his representative were given notice that the Board was going to consider whether the substantive appeals and/or notices of disagreement on the issues discussed below were adequate and/or timely and given an opportunity to request a hearing or present argument related to these issues. See 38 C.F.R. § 20.203 (1999). Although the Board has the obligation to assess its jurisdiction, it must consider whether doing so in the first instance is prejudicial to the veteran. Cf. Marsh v. West, 11 Vet. App. 468 (1998); see also Bernard v. Brown, 4 Vet. App. 384 (1993). In this case, the Board concludes that its consideration of these issues does not violate the veteran's procedural rights. The January 2000 letter to the veteran provided him notice of the pertinent regulations, as well as notice of the Board's intent to consider these issues. He was given 60 days to submit argument on this issue and provided an opportunity to request a hearing. As noted by the United States Court of Appeals for the Federal Circuit, "it is well-established judicial doctrine that any statutory tribunal must ensure that it has jurisdiction over each case before adjudicating the merits, that a potential jurisdictional defect may be raised by the court or tribunal, sua sponte or by any party, at any stage in the proceedings, and, once apparent, must be adjudicated. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996) (citations omitted). 2. Entitlement to an initial disability rating in excess of 10 percent for service-connected residuals of a right middle finger injury The steps to be taken to perfect an appeal to the Board following an adverse determination by an agency of original jurisdiction are set out fully in statute and regulations. "Appellate review will be initiated by a Notice of Disagreement and completed by a substantive appeal after a Statement of the Case is furnished as prescribed in this section." 38 U.S.C.A. § 7105(a) (West 1991); 38 C.F.R. § 20.200 (1999); see also 38 C.F.R. § 20.201 (1999) (requirements for notices of disagreement). "Proper completion and filing of a Substantive Appeal are the last actions the appellant needs to take to perfect an appeal." 38 C.F.R. § 20.202 (1999). The NOD and the substantive appeal must be filed with the activity/office that entered the determination with which disagreement has been expressed. 38 U.S.C.A. § 7105(b)(1) (West 1991); 38 C.F.R. § 20.300 (1999). After an NOD is filed, an SOC is to be prepared unless the benefit being sought is granted in full. 38 U.S.C.A. § 7105(d)(1) (West 1991). The SOC is to be forwarded to the appellant at his most recent address of record, with a copy provided to the representative. 38 C.F.R. § 19.30(a) (1999). Thereafter, a claimant must file the substantive appeal within 60 days from the date the SOC is mailed or within the remainder of the one-year time period from the date of mailing of notice of the initial determination being appealed, whichever ends later. 38 U.S.C.A. § 7105(d)(3) (West 1991); 38 C.F.R. § 20.302(b) (1999). Where the time limit would expire on a Sunday, the next succeeding workday will be included in the computation. 38 C.F.R. § 20.305(b) (1999). However, if a claimant has not yet perfected an appeal and VA issues an SSOC in response to evidence received within the one-year period following the mailing date of notification of the determination being appealed, 38 U.S.C. § 7105(d)(3) and 38 C.F.R. § 20.302(c) require VA to afford the claimant at least 60 days from the mailing date of the SSOC to respond and perfect an appeal, even if the 60-day period would extend beyond the expiration of the one-year period. In addition, if VA receives additional material evidence within the time permitted to perfect an appeal, 38 U.S.C. § 7105(d)(3) requires VA to issue an SSOC even if the one-year period following the mailing date of notification of the determination being appealed will expire before VA can issue the SSOC. See VAOPGCPREC 9-97 (February 11, 1997). A substantive appeal consists of a properly completed VA Form 9 or correspondence containing the necessary information. 38 C.F.R. § 20.202 (1999). The substantive appeal should set out specific arguments relating to errors of fact or law made by the RO in reaching the determination being appealed. 38 U.S.C.A. § 7105(d)(3) (West 1991); 38 C.F.R. § 20.202 (1999). To the extent feasible, the argument should be related to specific items in the SOC. Id. If the SOC addressed multiple issues, the appeal must either indicate that it is an appeal as to all issues, or it must specifically indicate which issues are being appealed. The Board will construe such arguments in a liberal manner for purposes of determining whether they raise issues on appeal, but the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Id. A determination of which a claimant is properly notified is final if an appeal is not perfected as prescribed by 38 C.F.R. § 20.302. 38 C.F.R. § 20.1103 (1999). The rating decision of February 1995 granted entitlement to service connection for residuals of a right middle finger injury, evaluated as noncompensable. The RO notified the veteran of this decision by a letter dated February 24, 1995, with an attached copy of the rating decision. A timely NOD addressing this issue was received at the RO on March 2, 1995. The RO issued an SOC on April 11, 1995, which was mailed to the veteran at his most recent address of record. The SOC notified the veteran that on his substantive appeal the "important thing is to say, in you own words, what benefit you want, what facts in the statement you disagree with, and any error you believe we made in applying the law." A blank VA Form 9 was received on April 20, 1995. There was no reference to the residuals of a right middle finger injury claim. A written statement was received at the RO on September 1, 1995, addressing other claims (i.e., entitlement to compensable disability ratings for service-connected hearing loss and low back pain and entitlement to service connection for residuals of a head injury, including migraine headaches). Again, there was no reference to the residuals of a right middle finger injury claim. The RO received no correspondence after issuing the SOC that indicated any continued disagreement with the denial of the foregoing claim between April 11, 1995, and February 24, 1996, the date marking the end of the one year period from notice of the rating decision. In September 1997, the RO assigned a 10 percent disability rating for the service-connected residuals of a right middle finger injury, effective from June 1, 1994. As noted above, under pertinent statutory provisions a claimant must file a substantive appeal to perfect an appeal. 38 U.S.C.A. § 7105(a) (West 1991); 38 C.F.R. § 20.200 (1999); see Roy v. Brown, 5 Vet. App. 554 (1993). In this case, the veteran submitted a VA Form 9 to the RO on April 20, 1995, that was blank in the section in which he was instructed to "[s]tate in specific details the benefits sought on appeal and your reasons for believing that the action appealed is erroneous." At no place on the form or in accompanying correspondence did the veteran provide this information. The veteran did not allege any error of law or fact regarding the issue of entitlement to a higher rating for service-connected residuals of a right middle finger injury. The veteran's representative argues that the veteran's request for a personal hearing at the RO received on March 10, 1995, should be accepted as an adequate substantive appeal. However, this statement was received prior to the issuance of the SOC and makes no reference to the issue of entitlement to a higher rating for service-connected residuals of a right middle finger injury. The representative further argues that the veteran's request for a personal hearing may be reasonably construed as a request for an extension of time in which to file a substantive appeal, and requested consideration of 38 C.F.R. § 3.109(b), Rowell v. Principi, 4 Vet. App. 9 (1993), and VAOPGCADV 28-96, concerning extensions of the time limit to file/act to perfect a claim or challenge an adverse VA decision. However, as discussed above, the issue here is adequacy of the appeal, not timeliness. A VA Form 9, Appeal to Board of Veterans' Appeal, was received on a timely basis, i.e., prior to February 24, 1996; however, the veteran did not allege any error of law or fact regarding the issue of entitlement to a higher rating for service-connected residuals of a right middle finger injury. Moreover, there is no correspondence or statement that can be construed as a request for an extension for good cause. See 38 C.F.R. § 20.303 (1999). The Board is bound in its decisions only by precedent opinions of the VA General Counsel. See 38 U.S.C.A. § 7104(c) (West 1991); 38 C.F.R. § 19.5 (1999). An application for review on appeal shall not be entertained unless it is in conformity with chapter 71, Title 38, United States Code. 38 U.S.C.A. § 7108 (West 1991). There has not been an adequate appeal of the issue, so any purported appeal is not in conformity with the law. Therefore, the appeal was not perfected, and the Board is without jurisdiction to adjudicate this claim. 38 U.S.C.A. §§ 7104(a), 7105(a), 7105(d)(3), and 7108 (West 1991 & Supp. 1999); 38 C.F.R. §§ 20.101(a), 20.200, and 20.202 (1999); YT v. Brown, 9 Vet. App. 195 (1996). 3. Service connection for pigmentary desperiva syndrome and impotence claimed as secondary to service-connected prostatitis In an October 1996 rating decision, the RO denied entitlement to service connection for pigmentary desperiva syndrome and entitlement to service connection for impotence as secondary to service-connected prostatitis. A control document and award letter indicates that the veteran was notified of this decision by letter dated November 4, 1996. Therefore, the one-year appeals period expired on November 4, 1997, one year after "the date of mailing of the notice of the result of the initial review or determination." 38 U.S.C.A. § 7105(b)(1) (West 1991). Testimony presented at the personal hearing at the RO on February 13, 1997, expressed disagreement with the RO's decision. The hearing transcript was transcribed on March 12, 1997. Therefore, the NOD was timely in that it was filed within one year from November 4, 1996. See Tomlin v. Brown, 5 Vet. App. 355, 357-58 (1993) (transcription of representative's statements at a hearing constituted a "writing" for purposes of a timely notice of disagreement). An SSOC was mailed to the veteran at his most recent address of record on September 29, 1997. In the SSOC, the RO notified the veteran that he had 60 days to perfect his appeal of the new issues. As noted above, a claim must be perfected by the filing of a substantive appeal within 60 days after the mailing of an SOC or SSOC (in certain circumstances) or the remainder of the one-year period after the mailing of notice of the initial determination, whichever is longer. The one-year appellate period, which expired on November 4, 1997, no longer governed as the appeals period within which the veteran was required to perfect his appeal. Rather, he had 60 days from September 29, 1997, or until November 28, 1997, to perfect his appeal. See 38 C.F.R. §§ 20.305(b) (1999). The veteran did not perfect his appeal by filing a substantive appeal in a timely fashion. The RO received no correspondence after issuing the SSOC that indicated any continued disagreement with the denial of the foregoing claims between September 29, 1997, and November 28, 1997. See 38 C.F.R. § 20.202 (1999). Moreover, there is no correspondence or statement that can be construed as a request for an extension for good cause. See 38 C.F.R. § 20.303 (1999). Nor was any additional relevant evidence received in this time period requiring the issuance of another SSOC. Absent a timely substantive appeal, the appeal was not perfected, and the Board is without jurisdiction to adjudicate these claims. See 38 U.S.C.A. §§ 7105(a), 7108; 38 C.F.R. § 20.200; YT v. Brown, 9 Vet. App. 195 (1996). Accordingly, since the veteran did not perfect his appeal by filing a substantive appeal in a timely fashion, his claims must be dismissed. 4. An initial compensable disability rating for a service- connected erythematous maculopapular rash/chronic dermatitis and an initial disability rating in excess of 30 percent for service-connected coronary artery disease, status post percutaneous transluminal coronary angioplasty, with hypertension A claimant will be notified of a decision and his appellate rights including the right to initiate an appeal by filing an NOD and the time limit within which an appeal must be perfected. 38 C.F.R. § 3.103(f) (1999). The veteran has one year from notification of a decision of the agency of original jurisdiction to file an NOD with the decision, and the decision becomes final if an NOD is not filed within that time. 38 U.S.C.A. § 7105(b) and (c) (West 1991); 38 C.F.R. § 20.302(a) (1999). As noted above, in April 1995 the RO granted entitlement to service connection for an erythematous maculopapular rash, evaluated as noncompensable. The veteran was notified of the RO's decision and of his appellate rights by letter dated May 9, 1995. In July 1995, the RO awarded entitlement to service connection for coronary artery disease, status post percutaneous transluminal coronary angioplasty, evaluated as 30 percent disabling. A control document and award letter indicates that the veteran was notified of this decision by letter dated July 5, 1995. No subsequent correspondence was received from him indicating disagreement with these decision by May 9, 1996, and July 5, 1996, respectively. Testimony presented at the personal hearing in February 1997, transcribed on March 12, 1997, indicating his intention to appeal the decisions is well after the one year time limit for filing an NOD with the decisions by the RO. Because the veteran did not file timely NODs with the April and July 1995 rating decisions, his claims are dismissed. The Board is dismissing these claims because they is not properly before the Board on appeal. 38 U.S.C.A. § 7104 (West 1991); 38 C.F.R. § 20.200 (1999). B. Service connection for residuals of a head injury, including scars and headaches Establishing service connection for a disability requires the existence of a current disability and a relationship or connection between that disability and a disease contracted or an injury sustained during service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). The first responsibility of a person seeking entitlement to VA benefits is to state a well-grounded claim. 38 U.S.C.A. § 5107(a) (West 1991). Establishing a well-grounded claim for service connection for a particular disability requires more than an allegation that the disability is service connected; it requires evidence relevant to the requirements for service connection and of sufficient weight to make the claim plausible, i.e., meritorious on its own or capable of substantiation. See Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The kind of evidence needed to make a claim well grounded depends upon the types of issues presented by a claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). For some factual issues, competent lay evidence may be sufficient. However, where the claim involves issues of medical fact, such as medical causation or medical diagnoses, competent medical evidence is required. Id. at 93. A well-grounded claim for direct service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 504-06 (1995). The United States Court of Appeals for Veterans Claims (formerly the U.S. Court of Veterans Appeals) (Court) has held that the second and third Caluza elements can also be satisfied under 38 C.F.R. § 3.303(b) by (a) evidence that a condition was "noted" during service or during an applicable presumption period; (b) evidence showing post-service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See 38 C.F.R. § 3.303(b); see also Brewer v. West, 11 Vet. App. 228, 231 (1998); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Alternatively, under 38 C.F.R. § 3.303(b), service connection may be awarded for a "chronic" condition when: (1) a chronic disease manifests itself and is identified as such in service (or within the presumption period under 38 C.F.R. § 3.307) and the veteran presently has the same condition; or (2) a disease manifests itself during service (or during the presumptive period), but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the veteran's present condition. Savage, 10 Vet. App. at 495-98. For purposes of determining whether a claim is well grounded, the evidence is generally presumed to be credible. See Robinette v. Brown, 8 Vet. App. 69, 75- 76 (1995), citing King v. Brown, 5 Vet. App. 19, 21 (1993). Concerning headaches, the veteran's service medical records show that he suffered a head injury in December 1969 and complained of headaches on numerous occasions thereafter. There is sufficient lay and medical evidence of incurrence of a disease/injury during service. The VA examiner in August 1997 diagnosed the veteran as having a "History of injury to the head in the past and headaches since then." It appears that the examiner is drawing a connection between current headaches and the inservice injury. Concerning scars, as noted above, the service medical records disclose that in December 1969 there was an abrasion on the veteran's forehead as a result of a head injury. There is no medical evidence in the claims file that shows that the veteran currently has a scar. At the time of his personal hearing at the RO in February 1997, his representative indicated that he could see a scar in the middle of the veteran's forehead. Although lay persons may not be competent to render a diagnosis of a specific type of disease or disorder, a scar is the type of disorder that lends itself to lay observation and to the extent of describing the symptoms observed, the lay statements constitute competent evidence. See Savage, 10 Vet. App. at 495; see also Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (citing Harvey v. Brown, 6 Vet. App. 390, 393 (1994) for the proposition that medical causation evidence may not be necessary for conditions that lend themselves to lay observation such as flat feet). Based upon these facts, the Board finds that the veteran's claim is well grounded, in that he has presented a plausible claim. Having determined that the claim for service connection for residuals of a head injury is well grounded, it appears that additional assistance is required in order to fulfill the duty to assist. 38 U.S.C.A. § 5107(a) (West 1991). Accordingly, the underlying issue of entitlement to service connection will be the subject of the remand that follows. C. Disability ratings 1. General The veteran appealed the initial assignments by the RO of the disability ratings for his service-connected hearing loss and back disabilities. Accordingly, his claims for initial ratings in excess of 0 and 40 percent, respectively, are well grounded. Shipwash v. Brown, 8 Vet. App. 218, 224 (1995) (holding that when a claimant is awarded service connection for a disability and subsequently appeals the initial assignment of a rating for that disability the claim continues to be well grounded as long as the rating schedule provides for a higher rating and the claim remains open). The RO provided the veteran appropriate VA examinations. There is no indication of additional treatment records that the RO failed to obtain, and sufficient evidence is of record to rate the veteran's service-connected disabilities properly. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Murphy v. Derwinski, 1 Vet. App. 78 (1990); Littke v. Derwinski, 1 Vet. App. 90 (1990). This appeal being from the initial rating assigned to disability upon awarding service connection, the entire body of evidence is for equal consideration. Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged." Fenderson v. West, 12 Vet. App. 119 (1999); cf. Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (where an increased rating is at issue, the present level of the disability is the primary concern). Such staged ratings are not subject to the provisions of 38 C.F.R. § 3.105(e), which generally require notice and a delay in implementation when there is proposed a reduction in evaluation that would result in reduction of compensation benefits being paid. Fenderson, 12 Vet. App. at 126. The veteran's appeal of the original grants of service connection rendered the February 1995 rating decision non-final, and the Board here considers all evidence in determining the appropriate evaluations. Before the Board may consider a staged rating of the appellant's disabilities, it must be determined that there is no prejudice to the appellant to do so without remand to the RO for that purpose. Bernard v. Brown, 4 Vet. App. 384, 389 (1993). As the regulations and rating criteria to be applied are the same, the Board finds no prejudice to the veteran in considering the issues as one of entitlement to higher ratings on appeal from the initial grants of service connection. The veteran has been provided appropriate notice of the pertinent laws and regulations and has had his claims of disagreement with the original ratings properly considered based on all the evidence of record. In the particular circumstances of this case, the Board sees no prejudice to the veteran in recharacterizing the issues on appeal to properly reflect his disagreement with the initial disability evaluations assigned to his service-connected disabilities. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155 (West 1991). Separate diagnostic codes identify the various disabilities. Id. Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1 and 4.2 (1999). For a claim where the veteran has disagreed with the original rating assigned for a service- connected disability, it is necessary to determine whether he has at any time since his original claim met the requirements for a higher disability rating. See Fenderson. It is also necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2 (1999), and to resolve any reasonable doubt regarding the extent of the disability in the veteran's favor. 38 C.F.R. § 4.3 (1999). If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). As noted above, in Fenderson the Court held that "staged" ratings could be assigned for separate periods of time based on facts found. Nevertheless, where the veteran files a claim for service connection for a disability incurred in service, the degree of disability that is contemporaneous with the claim shall be considered in assigning the initial disability rating and not the degree of disability manifested in service many years earlier. Moreover, unlike awards for increased disability ratings, there is no mechanism for awarding an initial disability rating earlier than the effective date of the award for service connection for that disability. Cf. 38 C.F.R. §§ 3.157; 3.400(o)(2) (1999). In this case, the RO awarded service connection for hearing loss and back disabilities effective from June 1, 1994, and the Board will consider the evidence of record since that time in evaluating the veteran's claims. 2. Entitlement to a compensable disability rating for service-connected bilateral hearing loss with tinnitus, on appeal from the initial grant of service connection, to include whether a separate disability evaluation is warranted for tinnitus The veteran's bilateral hearing loss is rated under Diagnostic Code 6100. During the pendency of this appeal, regulatory changes amended the VA Schedule for Rating Disabilities, 38 C.F.R. § Part 4 (1998), including the rating criteria for evaluating a hearing loss disorder. This amendment was effective June 10, 1999. See 64 Fed. Reg. 25202 through 25210 (May 11, 1999). When a law or regulation changes after a claim has been filed but before the administrative appeal process has been concluded, VA must apply the regulatory version that is more favorable to the veteran. Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). However, where the amended regulations expressly provide an effective date and do not allow for retroactive application, the veteran is not entitled to consideration of the amended regulations prior to the established effective date. Green v. Brown, 10 Vet. App. 111, 116-119 (1997); see also 38 U.S.C.A. § 5110(g) (West 1991). Therefore, the Board must evaluate the veteran's claim for a higher rating from June 1, 1994, under both the old criteria in the VA Schedule for Rating Disabilities and the current regulations in order to ascertain which version is most favorable to his claim, if indeed one is more favorable than the other. The RO has not considered the new regulations. However, the amended regulations did not result in any substantive changes. Essentially, the old and new regulations for evaluating a hearing loss disorder are identical. See 64 Fed. Reg. 25202 (May 11, 1999) (discussing the method of evaluating hearing loss based on the results of puretone audiometry results and the results of a controlled speech discrimination test and indicating that there was no proposed change in this method of evaluation). In this case, neither rating criteria can be more favorable to the veteran's claim since the criteria are identical. Accordingly, the veteran will not be prejudiced by the Board's review of his claim on appeal. See Bernard v. Brown, 4 Vet. App. 384 (1993). The amended regulations did incorporate some explanatory comments concerning VA's method of evaluating a hearing loss disorder, and these comments will be discussed where appropriate. The severity of a hearing loss disability is determined by applying the criteria set forth at 38 C.F.R. § 4.85 (1999). Under these criteria, evaluations of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. See 38 C.F.R. § 4.85(a) and (d) (1999). To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. §§ 4.85 and 4.87, Diagnostic Code 6100; Table VI (1998); 38 C.F.R. § 4.85(b) and (e) (1999). Tables VI and VII are reproduced below. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The amended regulations changed the title of Table VI from "Numeric Designations of Hearing Impairment" to "Numeric Designations of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination." See 64 Fed. Reg. 25202 (May 11, 1999). Moreover, Table VII was amended in that hearing loss is now rated under a single code, that of Diagnostic Code 6100, regardless of the percentage of disability. See 64 Fed. Reg. 25204 (May 11, 1999). TABLE VI Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination Percent of Discrimination Average Puretone Decibel Loss 0-41 42- 49 50- 57 58- 65 66- 73 74- 81 82- 89 90- 97 98+ 92- 100 I I I II II II III III IV 84- 90 II II II III III III IV IV IV 76- 82 III III IV IV IV V V V V 68- 74 IV IV V V VI VI VII VII VII 60- 66 V V VI VI VII VII VIII VIII VIII 52- 58 VI VI VII VII VIII VIII VIII VIII IX 44- 50 VII VII VIII VIII VIII IX IX IX X 36- 42 VIII VIII VIII IX IX IX X X X 0-34 IX X XI XI XI XI XI XI XI Table VII Percentage Evaluations for Hearing Impairment LEVEL OF HEARING IN BETTER EAR XI 100 * X 90 80 IX 80 70 60 VII I 70 60 50 50 VII 60 60 50 40 40 VI 50 50 40 40 30 30 V 40 40 40 30 30 20 20 IV 30 30 30 20 20 20 10 10 III 20 20 20 20 20 10 10 10 0 II 10 10 10 10 10 10 10 0 0 0 I 10 10 0 0 0 0 0 0 0 0 0 XI X IX VII I VII VI V IV III II I LEVEL OF HEARING IN POORER EAR The results of the audiograms since 1995, as indicated above, have shown that the veteran's hearing loss has been properly evaluated as zero percent disabling. Based on a 92 percent speech recognition score and a 28-decibel puretone threshold average as shown in February 1995, Table VI indicates a designation of Level "I" for the right ear. Based on a 96 percent speech recognition score and a 34-decibel puretone threshold average as shown in February 1995, Table VI indicates a designation of Level "I" for the left ear. When applied to Table VII, the numeric designations of "I" for the better ear and "I" for the poorer ear translated to a zero percent evaluation. Based on an 84 percent speech recognition score and a 33- decibel puretone threshold average as shown in September 1997, Table VI indicates a designation of Level "II" for the right ear. Based on an 80 percent speech recognition score and a 36-decibel puretone threshold average as shown in September 1997, Table VI indicates a designation of Level "III" for the left ear. When applied to Table VII, the numeric designations of "II" for the better ear and "III" for the poorer ear also translated to a zero percent evaluation. The amended regulations added two new provisions for evaluating veterans with certain patterns of hearing impairment that cannot always be accurately assessed under § 4.85 because the speech discrimination test may not reflect the severity of communicative functioning that these veterans experience. See 64 Fed. Reg. 25203 (May 11, 1999). The first new provision, that of 38 C.F.R. § 4.86(a), indicates that if puretone thresholds in the specified frequencies of 1000, 2000, 3000, and 4000 Hertz are 55 decibels or more, an evaluation can be based either on Table VI or Table VIa, whichever results in a higher evaluation. See 64 Fed. Reg. 25209 (May 11, 1999). This provision corrects for the fact that with a 55-decibel threshold level (the level at which speech becomes essentially inaudible) the high level of amplification needed to attempt to conduct a speech discrimination test would be painful to most people, and speech discrimination tests may therefore not be possible or reliable. Id. The second new provision, that of 38 C.F.R. § 4.86(b), indicates that when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be chosen from either Table VI or Table VIa, whichever results in the higher numeral, and that numeral will then be elevated to the next higher Roman numeral. Id. This provision compensates for a pattern of hearing impairment that is an extreme handicap in the presence of any environmental noise, and a speech discrimination test conducted in a quiet room with amplification of sound does not always reflect the extent of impairment experienced in the ordinary environment. Id. Table VIa is reproduced below. The amended regulations changed the title of Table VIa from "Average Puretone Decibel Loss" to "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average." See 64 Fed. Reg. 25202 (May 11, 1999). TABLE VIa Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average Average Puretone Decibel Loss 0- 41 42- 48 49- 55 56- 62 63- 69 70- 76 77- 83 84- 90 91- 97 98- 104 105 + I II III IV V VI VII VIII IX X XI Neither of these new provisions applies to the veteran's situation. Although one of the puretone thresholds shown on the September 1997 VA examination was 55 decibels or greater in the left ear, such findings were not present in all four frequencies of 1000, 2000, 3000, and 4000 Hertz. Furthermore, neither of the audiometric evaluations showed puretone thresholds of 70 decibels or more at 2000 Hertz. In determining whether a higher rating is warranted for a disease or disability, VA must determine whether the evidence supports the veteran's claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a) (West 1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Although the Board sympathizes with the veteran's difficulties due to hearing loss, the Board is constrained to abide by VA regulations. In light of the above, the Board finds that the preponderance of the evidence is against his claim for a compensable disability rating for bilateral hearing loss. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. 38 C.F.R. § 4.14 (1999). The Court has held that a claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The Court has acknowledged, however, that a veteran may have separate and distinct manifestations attributable to the same injury and should be compensated under different diagnostic codes. Fanning v. Brown, 4 Vet. App. 225, 230 (1993). The medical evidence associated with the claims file shows that the veteran has tinnitus associated with hearing loss. The manifestations attributable to the tinnitus (i.e., ringing in the ears) are separate and distinct from the symptomatology for which the veteran is being compensated under Diagnostic Code 6100. The symptomatology for the tinnitus is not duplicative of or overlapping with the symptomatology of hearing loss. If there was additional disability attributable to the tinnitus, the veteran would be entitled to a separate disability rating. The veteran is seeking a higher rating for his service-connected disability, and the tinnitus is one manifestation of that disability. Consideration is therefore given to whether a separate evaluation for the tinnitus should be assigned under an applicable diagnostic code. See Esteban v. Brown, 6 Vet. App. 259, 261-262 (1994); 38 C.F.R. § 4.14 (1997). The impairment caused by tinnitus is evaluated under VA Schedule for Rating Disabilities for impairment caused by Diseases of the Ear. 38 C.F.R. § 4.87a, Diagnostic Code 6260. According to the applicable diagnostic code, tinnitus that is persistent as a symptom of a head injury, concussion, or acoustic trauma warrants the assignment of a 10 percent disability rating. 38 C.F.R. § 4.87a, Diagnostic Code 6260 (1998). The regulation was amended was effective June 10, 1999, to provide a 10 percent rating for recurrent tinnitus. There is no higher schedular disability evaluation for tinnitus under the Schedule for Rating Disabilities. The recent medical records clearly demonstrate that the veteran is functionally impaired as a result of his tinnitus. He has described his tinnitus as "constant." The veteran's complaints are found to be credible, to the extent that they are not refuted by the medical evidence. Although the old version of Diagnostic Code 6260 has an expressed requirement that a compensable evaluation be assigned for persistent tinnitus that is the symptom of a head injury, concussion or acoustic trauma, the etiology of the veteran's tinnitus is not clear in this case, and any doubt is resolved in his favor. The service medical records reveal that he did suffer a head injury. Thus, the evidence supports the assignment of a separate 10 percent disability evaluation under Diagnostic Code 6260 for tinnitus, effective June 1, 1994. Accordingly, a separate 10 percent rating will be granted. As noted above, a 10 percent disability rating is the maximum allowed for tinnitus on a schedular basis. 38 C.F.R. § 4.87a, Diagnostic Code 6260 (1999). 3. Entitlement to a disability rating in excess of 40 percent for service-connected lumbosacral spine stenosis with degenerative joint disease and small disc herniation at L5- S1, on appeal from the initial grant of service connection a. Schedular rating The severity of the veteran's service-connected low back disability is currently evaluated for VA compensation purposes under VA's Schedule for Rating Disabilities, 38 C.F.R. § 4.71a, Diagnostic Codes 5285, 5286, 5289, 5292, 5293, 5295 (1999). Separate evaluations under each of these codes are not appropriate because the rule against pyramiding of benefits mandates that "the rating schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology; such a result would overcompensate the claimant for the actual impairment of his earning capacity." 38 C.F.R. § 4.14 (1999); Brady v. Brown, 4 Vet. App. 203, 206 (1993); see also Esteban v. Brown, 6 Vet. App. 259, 262 (1994) ("The critical element is that none of the symptomatology . . . is duplicative of or overlapping with the symptomatology of the other . . . conditions."); see also VAOPGCPREC 23-97 (July 1, 1997) (where the medical evidence shows that the veteran has arthritis of a joint and where the diagnostic code applicable to his/her disability is not based upon limitation of motion, a separate rating for limitation of motion under diagnostic code 5003 may be assigned, but only if there is additional disability due to limitation of motion.) Diagnostic code 5293 specifically encompasses loss of range of motion, so that additional ratings for painful or limited motion of the lumbar spine would constitute pyramiding, or compensating twice for the same disability. VAOPGCPREC 36-97 (December 12, 1997). However, the Board will address the rating criteria of each of these diagnostic codes, all of which apply to the symptoms of the veteran's low back disability, to ensure that the veteran's disability receives the highest applicable rating. The highest available rating under diagnostic code 5295 is 40 percent for severe lumbosacral strain. Since the veteran's service-connected low back disability is already rated 40 percent disabling under this code, further examination of diagnostic code 5295 would not avail him in his claim for an increased rating. Similarly, the highest available rating under diagnostic code 5292, for limitation of motion of the lumbar spine, is 40 percent. Therefore, further consideration of those diagnostic codes would not be useful in this case. A rating greater than that currently in effect is available where there is pronounced intervertebral disc syndrome, with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, with little intermittent relief (diagnostic code 5293); complete bony fixation, or ankylosis, of the spine (diagnostic code 5286); unfavorable ankylosis of the lumbar spine (diagnostic code 5289); or residuals of a fractured vertebra (diagnostic code 5285). 38 C.F.R. § 4.71a, Diagnostic Codes 5285, 5286, 5289, 5293 (1999). Since there is no evidence of fractured vertebrae, diagnostic code 5285 is not applicable. Since there is no evidence of complete bony fixation of the spine, diagnostic code 5286 is, similarly, not applicable. In addition, diagnostic code 5289 is not applicable because there is no evidence of ankylosis of the lumbar spine. Therefore, in the present case, a rating higher than 40 percent is available only by reference to the relevant diagnostic code for intervertebral disc syndrome. While the veteran has demonstrated some neurological symptomatology, his condition is not so severe as to warrant a 60 percent disability rating for a pronounced condition under diagnostic code 5293. For example, on VA general medical examination in July 1994, he had no evidence of pain or paravertebral muscle spasm. He had normal motor status, coordination and reflexes. On VA spine examination in July 1996, neurologically, he had no motor or sensory loss. More recently, on VA spine examination in August 1997, the veteran reported back spasms and lower back pain radiating into the right leg with tingling and numbness only at times. This would suggest that he has more than little intermittent relief. Mild muscle spasms were noted in the lumbosacral area and there was pain on motion; however, deep tendon reflexes were symmetrical bilaterally. Functional loss due to pain was described as moderate to severe, as opposed to pronounced. Finally, on VA disease/injuries of the brain examination in August 1997, the veteran had normal muscle strength and deep tendon reflexes. In view of the foregoing, the Board finds that the manifestations shown by the evidence to result from the veteran's service-connected low back disorder are adequately compensated by the 40 percent rating which contemplates a severe disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5293 5295 (1999). The lay contentions offered in conjunction with this claim for higher compensation benefits are outweighed by the medical evidence cited above which has been found more probative to the issue on appeal and therefore, such contentions cannot serve to establish a finding of increased disability due to the service-connected low back disorder. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (holding that interest in the outcome of a proceeding may affect the credibility of testimony). The Board has considered the various other provisions of 38 C.F.R. Parts 3 and 4 in accordance with Schafrath v. Derwinski, 1 Vet. App. 589 (1991), but finds that they do not provide a basis upon which to grant an evaluation higher than 40 percent for the service-connected low back disability. With regard to establishing loss of function due to pain, it is necessary that complaints be supported by underlying evidence of adequate pathology. The Board finds that the effects of pain reasonably shown to be due to the veteran's service-connected low back disability are, however, already contemplated by the 40 percent rating for a severe low back disability. Indeed, the VA examiner in August 1997 stated that functional loss due to pain was moderate to severe. There is no indication in the current record that pain due to disability of the lumbar spine causes functional loss greater than that contemplated by the currently assigned 40 percent evaluation. 38 C.F.R. §§ 4.40, 4.45 and DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board further concludes that the medical evidence in this case was adequately detailed for rating purposes including consideration of the criteria in sections 4.40 and 4.45, which provide "guidance for determining ratings under . . . diagnostic codes assessing musculoskeletal function." Spurgeon v. Brown, 10 Vet. App. 194, 196 (1997) (emphasis added); 38 C.F.R. §§ 4.40, 4.45 (1999). For example, in the July 1996 and August 1997 VA examination reports, the examiners provided measurements of range of motion, and noted the veteran's complaints of pain. Remand for further development of the medical evidence is not warranted. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in 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); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided); cf. Brady v. Brown, 4 Vet. App. 203, 207 (1993) (a remand is unnecessary even where there is error on the part of VA, where such error was not ultimately prejudicial to the veteran's claim). Accordingly, for the reasons discussed above, the currently assigned rating for the veteran's low back disability adequately reflects the level of impairment pursuant to the schedular criteria. The preponderance of the evidence is against the claim for a higher rating for service-connected lumbosacral spine stenosis with degenerative joint disease and small disc herniation at L5-S1. b. Extraschedular rating The issue of entitlement to an extraschedular disability rating pursuant to 38 C.F.R. § 3.321(b) for the veteran's low back disability has been raised by his representative. See Appellant's brief, dated October 22, 1999. In exceptional cases where schedular evaluations are found to be inadequate, the RO may refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (1999). "The governing norm in these exceptional cases 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." Id. In this case, the RO has not considered whether an extraschedular rating is appropriate for the veteran's low back disability. When the Board addresses an issue that was not addressed by the RO, consideration must be given to whether the veteran will be prejudiced by the Board's consideration of the issue in the first instance. Therefore, the Board must decide whether the veteran will be prejudiced by its consideration of this issue. Although the relevant statutes and regulations regarding extraschedular ratings were not included in the statement of the case or supplemental statements of the case, the veteran's due process rights are not violated by this Board decision. The Court has held that the question of an extraschedular rating is a component of the veteran's claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337 (1996). While the Board does not have the authority to grant an extraschedular evaluation in the first instance, it is not precluded from reviewing an RO determination that referral is not warranted and confirming that decision. See Floyd v. Brown, 9 Vet. App. 88, 95 (1996) (Board may consider whether referral to "appropriate first-line officials" for extraschedular rating is required). The Board is also not precluded from concluding, on its own, that referral for extraschedular consideration is not warranted. See Bagwell, 9 Vet. App. at 339 (BVA may affirm an RO conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1) or reach such a conclusion on its own) (emphasis added). According to Bagwell, it is proper for the Board, in the first instance, to determine whether referral for an extraschedular evaluation is warranted. Since the veteran's representative has specifically raised this issue and had an opportunity to present argument on it, there is no prejudice if the Board considers it. See VAOPGCPREC 16-92 at 7-8. The veteran has had a full opportunity to present evidence and argument on his claim for a higher rating, and the Board can fairly consider this claim. See also VAOPGCPREC 6-96 at 12- 13. The schedular evaluations for a low back disorder are not inadequate. As fully detailed above, higher disability ratings are available for intervertebral disc syndrome where specific objective criteria are met. The veteran does not meet the schedular criteria for a 60 percent disability rating. It does not appear that the veteran has an "exceptional or unusual" disability; he merely disagrees with the rating schedule's assignment of a 40 percent evaluation for his level of disability. The veteran has not required any periods of hospitalization, nor has he required any extensive outpatient treatment for this condition. There is no evidence in the claims file to suggest marked interference with employment as a result of this condition that is in any way unusual or exceptional, such that the schedular criteria do not address it. The Board therefore concludes that referral for extraschedular consideration is not warranted in this case. In the absence of any evidence that reflects that this disability is exceptional or unusual such that the regular schedular criteria are inadequate to rate it, referral for consideration of an extraschedular rating is not in order. ORDER The veteran having failed to perfect an appeal, the claim of entitlement an initial disability rating in excess of 10 percent for service-connected residuals of a right middle finger injury is dismissed. The veteran having failed to perfect an appeal, the claim of entitlement to service connection for pigmentary desperiva syndrome is dismissed. The veteran having failed to perfect an appeal, the claim of entitlement to service connection for impotence claimed as secondary to service-connected prostatitis is dismissed. Having found that a timely NOD was not filed, the claim of entitlement to a compensable disability rating for a service- connected erythematous maculopapular rash/chronic dermatitis, on appeal from the initial grant of service connection, is dismissed. Having found that a timely NOD was not filed, the claim of entitlement to a disability rating in excess of 30 percent for service-connected coronary artery disease, status post percutaneous transluminal coronary angioplasty, with hypertension, is dismissed. The claim for service connection for residuals of a head injury is well grounded. Entitlement to an initial compensable disability rating for bilateral hearing loss is denied. Entitlement to a separate 10 percent disability rating, and no more, for tinnitus is granted, effective June 1, 1994, subject to the governing regulations pertaining to the payment of monetary benefits. Entitlement to an initial disability rating in excess of 40 percent for service-connected lumbosacral spine stenosis with degenerative joint disease and small disc herniation at L5- S1, to include the issue of entitlement to an extraschedular evaluation, is denied. REMAND Residuals of a head injury Additional development is warranted prior to adjudication of the veteran's claim. On review of the August 1997 VA examiner's diagnosis, it is unclear whether he was merely recording the history as reported by the veteran or rendering a medical opinion concerning the etiology of the veteran's headaches. On remand, the examination report should be returned to the examiner for clarification. Further, the Board concludes that because a scar is the sort of disorder that lends itself to lay observation, the RO should afford the veteran a VA examination in order to determine the etiology of his current facial scar(s), even though there is no documented evidence of facial scars in service. See Savage, 10 Vet. App. at 497 (noting that, even if the record did not contain service medical records showing treatment in service for a back problem, continuity of symptomatology has been demonstrated because a noting during service requires that the evidence show only that a condition was observed during service but does not require that such observation be recorded, either in special documentation or during the time of service). Service-connected prostatitis Potentially relevant medical records have not been obtained by the RO. For example, on VA genitourinary examination in August 1997, the examiner referred to January 1997 VA treatment notes of the veteran from the Birmingham VA Medical Center (VAMC). These records are not associated with the claims folder. Therefore, the RO should make arrangements to obtain these records on remand, as the duty to assist involves obtaining relevant medical reports where indicated by the facts and circumstances of the individual case. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA records are constructively part of the record which must be considered); Murphy v. Derwinski, 1 Vet. App. 78 (1990); Littke v. Derwinski, 1 Vet. App. 90 (1990). Further, a VA doctor who reviewed the veteran's claims folder in July and October 1996 recommended that he undergo additional evaluation to assess the severity of prostatitis, to include complete urodynamic testing and evaluation for urinary frequency and nocturia. This should be accomplished on remand. Accordingly, while the Board regrets the delay, in order to obtain additional information and ensure that appellate consideration is fully informed, this claim is REMANDED for the following: 1. Request that the veteran provide a list of those (private and VA providers) who have treated him for his service-connected prostatitis since his separation from active service and obtain all records of any treatment reported by the veteran that are not already in the claims file. The Board is particularly interested in any treatment received at the Birmingham and Montgomery, Alabama, VAMCs. With respect to the VAMCs, all records maintained are to be requested, to include those maintained in paper form and those maintained electronically (e.g., in computer files) or on microfiche. If any requests for private treatment records are not successful, the veteran and his representative should be advised of this and given the opportunity to obtain and submit the records, in keeping with the veteran's responsibility to submit evidence in support of his claim. 38 C.F.R. § 3.159(c). 2. Afford the veteran an appropriate VA medical examination in order to determine the etiology of any headaches and facial scars. The veteran should be examined by the doctor that saw him on VA disease/injuries of the brain examination in August 1997, if available, so that clarification of the prior diagnosis can be obtained. The claims folder and a copy of this remand are to be made available to the examiner prior to the examination, and the examiner is asked to indicate that he or she has reviewed the claims folder. All tests deemed necessary by the examiner are to be performed. The examiner should specifically express an opinion as to whether it is at least as likely as not that any current headache disorder and facial scars are related to any injury or disease experienced in service, including a head injury in 1969. If headaches are not related to the inservice head injury, the examiner should render an opinion as to the date of onset and etiology of any current headache disorder. Is it at least as likely as not that any current headache disorder is related to the veteran's numerous inservice complaints of headaches? The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the examiner's conclusion. If further testing or examination by other specialists is determined to be warranted in order to evaluate the condition(s) at issue, such testing or examination is to be accomplished. 3. Afford the veteran an appropriate VA medical examination in order to determine the severity of service-connected prostatitis. The claims folder and a copy of this remand are to be made available to the examiner prior to the examination, and the examiner is asked to indicate that he or she has reviewed the claims folder. All tests deemed necessary by the examiner are to be performed, to include complete urodynamic testing and evaluation for urinary frequency and nocturia. The examiner should identify what symptoms, if any, the veteran currently manifests or has manifested in the recent past that are attributable to prostatitis, including any voiding dysfunction and diurnal and nocturnal urinary frequency. Does the veteran suffer from recurrent symptomatic infection requiring drainage/frequent hospitalization and/or require continuous intensive management? Does he require the wearing of absorbent materials, and if so, how often must they be changed? The examiner should state to what extent the findings and conclusions are based on clinical findings on examination and a review of the medical records in the claims file as opposed to history provided by the veteran. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the examiner's conclusion. If further testing or examination by other specialists is determined to be warranted in order to evaluate the condition at issue, such testing or examination is to be accomplished. 4. Review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination reports. If the requested examinations do not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the reports must be returned for corrective action. 38 C.F.R. § 4.2 (1999); see also Stegall v. West, 11 Vet. App. 268 (1998). 5. Readjudicate the veteran's claims on appeal. If the decision with respect to the claims remains adverse to the veteran, he and his representative should be furnished a supplemental statement of the case and afforded a reasonable period of time within which to respond thereto. Then, the claims folder should be returned to the Board for further appellate consideration, if warranted. The veteran need take no action until he is so informed. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes of this REMAND are to obtain additional information and to comply with all due process considerations. This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. J. SHERMAN ROBERTS Member, Board of Veterans' Appeals