Citation Nr: 1453067	
Decision Date: 12/02/14    Archive Date: 12/10/14

DOCKET NO.  12-06 185	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to a rating in excess of 10 percent for degenerative disc disease (DDD) with degenerative joint disease (DJD) of the lumbar spine for the period prior to August 25, 2014, and in excess of 40 percent thereafter.

2.  Entitlement to a compensable rating for bilateral hearing loss.
 

REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

L. A. Rein, Counsel

INTRODUCTION

The Veteran had active service from November 1961 to November 1964 and from  February 1965 to February 1982, with service in the Republic of Vietnam from November 1969 to November 1970. 
 
This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  In October 2012, the Veteran and his spouse testified at a hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record.  

In June 2014, the Board remanded these matters for additional development.  In an October 2014 rating decision, a higher 40 percent rating was granted for the Veteran's lumbar spine disability, effective August 25, 2014.  However, as higher ratings are available during both periods on appeal, and in this matter, the Veteran is presumed to seek the maximum available benefit for a disability, the claim for higher ratings for the Veteran's service-connected back disability remains viable on appeal.  See AB v. Brown, 6 Vet. App. 35, 38 (1993). 

This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems.


FINDINGS OF FACT

1.  For the period prior to August 25, 2014, the Veteran's service-connected back disability has been manifested by complaints of pain and tenderness, with normal range of motion on forward flexion to 90 degrees and some limitation of motion on extension, limited at most, to 25 degrees.  Medical evidence does not show a combined range of motion of the thoracolumbar spine less than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, or incapacitating episodes requiring medically prescribed bed rest.  
 
2.  For the period beginning on August 25, 2014, the Veteran's service-connected back disability has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine, incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, or separately ratable neurological manifestations.

3.  The Veteran's service-connected bilateral hearing loss has been manifested by hearing impairment during the entire appeal period no worse than Level II in the right ear and Level II in the left ear.


CONCLUSIONS OF LAW

1.  The criteria for ratings in excess of 10 percent for DDD with DJD of the lumbar spine for the period prior to August 25, 2014, and in excess of 40 percent have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.7, 4.71a, Diagnostic Code 5235-5243 (2014).

2.  The criteria for a compensable rating for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5103, 5013A, 5107 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to notify and assist

Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim.  The 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; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2014); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice.  Shinseki v. Sanders, 129 S.Ct. 1696 (2009).  

The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice.  The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Specifically, the Veteran was notified in an August 2009 letter.  

The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim.  Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim).  

Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent October 2014 supplemental statement of the case.  Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless).  

The Board also finds that the duty to assist requirements have been fulfilled.  All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained.  The appellant has not referred to any additional, unobtained, relevant, available evidence.  VA has obtained examination with respect to the claims on appeal in September 2009 and in August 2014 (low back) and September 2014 (hearing loss).  Thus, the Board finds that VA has satisfied the duty to assist provisions of law.  No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development.  Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 

II.  Increased ratings

Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  When a question arises as to which of two ratings applies under a particular Diagnostic Code (DC), the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating applies.  38 C.F.R. § 4.7 (2014). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2014). 

The Veteran's entire history is to be considered when assigning disability rating.  38 C.F.R. § 4.1 (2014); Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007).  The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

A.  Lumbar spine disability

Spine disabilities are rated under a General Rating Formula for Diseases and Injuries of the Spine, which provides a 20 percent rating for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 

A 40 percent rating is warranted for forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent rating is warranted for unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a (2014). 

When rating diseases and injuries of the spine, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately, under an appropriate diagnostic code.  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2014).

For VA purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. Normal combined range of motion of the thoracolumbar spine is 240 degrees. Normal ranges of motion for each component of spinal motion provided are the maximum usable for calculating the combined range of motion. 38 C.F.R. § 4.71a, Plate V, General Rating Formula for Diseases and Injuries of the Spine, Note 2 (2014).  The criteria of the General Rating Formula are applied with and without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.

When evaluating musculoskeletal disabilities based on limitation of motion, a higher rating must be considered where the evidence demonstrates additional functional loss due to pain, pursuant to 38 C.F.R. §§ 4.40 and 4.45. The diagnostic codes pertaining to range of motion do not subsume sections 4.40 and 4.45, and the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups.  See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 

However, the United States Court of Appeals for Veterans Claims has held that 38 C.F.R. § 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function.  Spurgeon v. Brown, 10 Vet. App. 194 (1997).

In determining if a higher rating is warranted on this basis, pain itself does not constitute functional loss.  Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion.  However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance, as provided in sections 4.40 and 4.45.  Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 

The intent of the Rating Schedule is 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.  As such, painful motion should be considered to determine whether a higher rating is warranted on such basis, whether or not arthritis is present.  See Burton v. Shinseki, 25 Vet. App. 1 (2011). 

A veteran's back disability may alternatively be rated under the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  38 C.F.R. § 4.71a (2014).  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.

Here, in July 2009, the Veteran submitted a claim for an increased rating for his lumbar spine disability.  August 2009 VA medical records show that the Veteran underwent physical therapy for his back pain which the Veteran described as constant and at a level of 4-5 out of 10.  If he moves the wrong way (often bending or twisting), he will have four to five days of 8-9/10.  Pain rating after physical therapy was a 0.5 on a scale from 0-10.  Range of motion of the spine and bilateral lower extremities was within functional limits.  Sitting and standing was good, endurance was fair+.  The therapist noted that the Veteran had responded very well to lumbar traction.  The Veteran stated that he is able to do so much more now with little or no pain and is only having to use the TENS unit occasionally.  He was able to walk much further and overall is very happy with the results.  

A September 2009 VA spine examination report reflects that the Veteran complained of pain in the lumbar area radiating to both hips on a daily basis.  The severity was 6/10.  He had not had any recently incapacitation episodes of back pain in the past 12 months.  He took Motrin 800mg was needed with moderate relieve.  The Veteran has had no actual flare-ups of his back pain in the past 12 months.  He reported that he had no stiffness, fatigue, spasms, weakness, decreased motion, numbness, paresthesias, leg or foot weakness, or bladder complaints.  He did not use any walking or assistive devices.  He was able to perform the usual activities of daily living such as operating a motor vehicle, dressing and undressing, and attending to the needs of nature.  He was using a prescribed home-based traction unit for his back as needed.

Inspection of the lumbar spine revealed normal posture and gait, normal curvature of the spine, and normal symmetry and appearance.  Range of motion testing was performed.  He had forward flexion to 90 degrees with mild discomfort, extension to 25 degrees with mild discomfort, lateral flexion to 30 degrees bilaterally with mild discomfort, and lateral rotation to 25 degrees bilaterally with mild to moderate discomfort.  There was objective evidence of painful range of motion with acute spasms, weakness, or tenderness.  He had no atrophy or guarding.  He had no postural abnormalities, fixed deformity (ankyloses), or abnormality of musculature of the back.  Sensory, motor, and reflex examinations were noted as intact.  No additional limitations were noted with 3 repetitions of movements during the physical examination as related to pain, fatigue, incoordination, weakness, or lack of endurance.  There was no indication of IVDS. The diagnosis was DJD with DDD lumbosacral spine with residuals. 

A September 2009 VA medical record notes that the Veteran had significant relief of back pain with lumbar traction.  He had not been using the TENS unit due to the effectiveness of the lumbar traction.  Pain had decreased from a maximum of 8-9 prior to back traction to a 4 with the lumbar traction and after using the lumbar traction for about 20 minutes, the pain was reduced to a "1."  He was now ambulating much more.

A July 2010 VA medical record notes that the Veteran's chronic low back pain was well controlled with physical therapy.  January and May 2011 VA medical records note that the Veteran's back pain was significantly improved with lumbar traction.  He was assessed with degenerative changes.  

A September 2012 VA medical record notes that the Veteran's back pain was improved with "inversion table."  A March 2013 VA medical record notes that the Veteran's arthralgia of the lumbar area persists; however, the Veteran decreased his dosage of Hydrocodone.  It was noted that the Veteran continued to be physically and mentally active.

An August 24, 2014 VA spine examination report reflects that the Veteran was diagnosed with degenerative arthritis of the spine.  The Veteran stated he was evaluated by an arthritis specialist in Killeen, Texas three to four months earlier.    He stated he has bone on bone vertebrae with no disc space, and that is causing his pain.  He had a CT scan of the spine.  Recommended treatment was pain control and no surgery.  His current treatment is with Advil, which is not effective.  He stopped using Vicodin about 6 months ago, due to concern about liver side effects.  His current back pain is constant with variable intensity, average rating 8 out of 10.  His pain increases with walking over 300 feet and bouncing on a riding mower.  Pain decreases with lying supine and stretching out and using a home traction unit.  Heat also decreases pain to 6/10 briefly.  The Veteran indicated that pain radiates into his right greater than his left hips.  He denied any bilateral lower extremity symptoms of radiating pain or tingling, numbness, or weakness associated with back pain.  The examiner noted a review of the claims file and discussed pertinent medical records.  The Veteran did not report that flare-ups impact the function of his thoracolumbar spine.  

Range of motion testing revealed flexion to 15 degrees with painful motion, extension to 0 degrees with painful motion, right and left lateral flexion to 10 degrees with painful motion beginning at 5 degrees,  right lateral rotation to 20 degrees with painful motion beginning at 15 degrees, and left lateral rotation to 20 degrees with painful motion beginning at 10 degrees.  The Veteran was able to perform repetitive-use testing with three repetitions.  Changes in range of motion after repetitive use testing were only on right and left lateral flexion, both to 5 degrees.  The Veteran has functional loss and/or impairment of the thoracolumbar spine reported as less movement than normal, incoordination, pain on movement, deformity, instability of station, disturbance of locomotion, and interference with siting, standing and/or weight-bearing.  The Veteran had palpable tenderness over the mid-spine T8 to S1 levels and over bilateral paraspinals from L3 to S1 level.  He had muscle spasm and guarding of the thoracolumbar spine resulting in abnormal gait or abnormal spinal contour.  Muscle strength testing was normal and there was no muscle atrophy.  Reflex and sensory testing was normal.  The Veteran did not have radicular pain or other signs or symptoms due to radiculopathy.   He did not have ankylosis of the spine or IVDS.  He uses a cane daily for prolonged walking over 100 feet and a walker two to three times a week for back pain. 

The examiner further noted that there was no weakness or fatigue of the thoracolumbar spine with repetitive motion.  The Veteran walked and stood with one cane for balance, with primarily upright stance and occasional leaning forward with head and shoulders.  Heel and toe gait declined due to perceived imbalance.  While sitting and dressing after the exam, the Veteran maintained an upright posture for the spine, he was able to bend his knees and cross over his legs to replace his socks and shoes.  Thoracolumbar spine deformity with mild scoliotic curve, and loss of normal thoracic kyphosis and lumbar lordosis. Visible muscle spasms were noted, with no asymmetrical atrophy.  The examiner concluded that the Veteran's thoracolumbar spine condition does not impact his ability to work.  

A September 2014 VA peripheral nerves examination revealed normal findings.  The examiner determined that the current clinical examination findings were most consistent with a diagnosis of chronic thoracolumbar spine degenerative arthritis, and thoracolumbar deformity with mild scoliosis and loss of normal thoracic kyphosis and lumbar lordosis.  There was no evidence of spine-related peripheral neuropathy on examination. 

Upon review of the probative evidence of record, the Board finds that the Veteran's back disability does not warrant a rating in excess of 10 percent for the period prior to August 25, 2014 as there is no medical evidence that the Veteran's has favorable ankylosis of the entire thoracolumbar spine; forward flexion greater than 30 degrees, but not greater than 60 degrees; or a combined range of motion of the thoracolumbar spine less than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  Furthermore, the Veteran has not been shown to have IVDS to warrant a rating based on incapacitating episodes, which there is no evidence that the have had during this period.  
 
Additionally, the Board finds that a rating in excess of 40 percent is not warranted for the period beginning on August 25, 2014.  While the Veteran indicated during his August 2014 VA examination that he had seen a private physician for arthritis, the Board finds that the VA examination addresses the rating criteria and shows that there is no objective evidence of unfavorable ankylosis of the entire thoracolumbar spine which is required for the next higher rating.  In fact, while the August 2014 VA examination noted a variety of findings, there was no finding of thoracolumbar spine ankylosis and flexion was to 15 degrees (with no additional limitation of motion after repetitive motion).  Furthermore, the August 2014 VA examiner specifically noted that the Veteran did not have IVDS and that there were no incapacitating episodes that required bed rest prescribed by a physician.  Thus, during this period on appeal, there is no objective evidence that a physician prescribed bed rest or that he had incapacitating episodes totaling at least 6 weeks during the past 12 months such as to warrant a rating greater than 40 percent for his back disability. 

With regard to establishing loss of function due to pain, the provisions of the general rating schedule for spinal disorders are controlling whether or not there are symptoms of pain, and irrespective whether the pain radiates.  While the September 2009 and August 2014 VA examiners reported pain on motion and after repetitions, there is no indication that pain, due to disability of the back, caused functional loss greater than that contemplated by the 10 percent rating for the period prior to August 25, 2014, and the 40 percent rating assigned from August 25, 2014.  38 C.F.R. §§ 4.40, 4.45; DeLuca.  Further, a separate evaluation for pain is not for assignment.  

Accordingly, the Veteran's service-connected back disability does not warrant a rating in excess of 10 percent for the period prior to August 25, 2014, or a rating in excess of 40 percent for the period beginning on August 25, 2014, under any of the pertinent spine rating criteria.  Moreover, as the preponderance of the probative medical and other credible evidence of record is against the claim for an increased rating for the Veteran's service-connected back disability for the periods in question, the benefit-of-the-doubt rule does not apply, and the claim must be denied.  38 U.S.C.A. § 5107(b).

B.  Bilateral hearing loss

The Veteran's service-connected bilateral hearing loss disability is currently rated 0 percent disabling under 38 C.F.R. § 4.85, Diagnostic Code 6100 (2014).  He contends that the severity of his bilateral hearing loss disability warrants a compensable disability rating.  
Ratings for hearing loss are determined in accordance with the findings obtained on audiometric evaluations.  Ratings for hearing impairment range from 0 percent 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 1000, 2000, 3000, and 4000 cycles per second.  To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness.  38 C.F.R. § 4.85, Diagnostic Code 6100 (2014).

Hearing tests will be conducted without hearing aids, and the results of testing are applied to Table VI and Table VII. 38 C.F.R. § 4.85, Tables VI, VII (2014).

Exceptional patterns of hearing impairment are rated under 38 C.F.R. § 4.86 (2014). When the pure tone threshold at each of the four specified frequencies of 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 (2014).  Also, when the pure tone 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 (2014).

An adequate evaluation of impairment of hearing acuity rests upon the results of controlled speech discrimination tests, together with tests of the average hearing threshold levels at certain specified frequencies.  38 C.F.R. § 4.85, Diagnostic Code 6100 (2014).

The assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are made.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).  
In July 2009, the Veteran submitted a claim for an increased rating for his bilateral hearing loss disability. 

A July 2009 VA audiological assessment reflects that the Veteran admitted to difficulty hearing over the telephone.  On audiometric testing, pure tone thresholds, in decibels, were reported as follows: 




HERTZ



1000
2000
3000
4000
AVG
RIGHT
20
40
75
80
53.75
LEFT
30
65
70
70
58.75

Speech discrimination scores on the Maryland CNC word list were 100 percent in the right ear and 92 percent in the left ear.  The assessment for the right ear was normal through 1500 Hz with a mild to severe sensorineural hearing loss for the higher frequencies and for the left ear normal through 500 Hz with a mild to severe sensorineural hearing loss for the higher frequencies.  The examiner stated that the Veteran's sensorineural hearing loss can be expected to continue to result in significant communication problems, especially in noisy listening environments.  He was a candidate for binaural amplification and was eligible for VA hearing aid benefits.

In August 2009, the Veteran was seen for a hearing aid evaluation and the issuance of new hearing aids.  Otoscopy revealed clear canals and intact tympanic membranes.  A September 2009 VA audiological evaluation noted that results from a full evaluation on July 2009 were used as they were felt to be reliable and recent enough to be used per the Veteran's request.  On audiometric testing, pure tone thresholds, in decibels, were reported as follows: 




HERTZ



1000
2000
3000
4000
AVG
RIGHT
20
40
75
80
53.75
LEFT
30
65
70
70
58.75

Speech discrimination scores on the Maryland CNC word list were 100 percent in the right ear and 92 percent in the left ear.  The diagnosis for the frequencies 500-4000 Hz was a bilateral sensorineural hearing loss which is mild to severe over 1500 Hz at the right ear and mild to moderately-severe over 500 Hz at the left ear. 

A September 2014 VA audiology examination provided audiometric testing, pure tone thresholds, in decibels, that were reported as follows: 




HERTZ



1000
2000
3000
4000
AVG
RIGHT
30
60
80
80
63
LEFT
30
65
70
70
59

Speech discrimination scores on the Maryland CNC word list were 96 percent in the right ear and 92 percent in the left ear.  The diagnosis was bilateral sensorineural hearing loss.  The Veteran hearing loss impacts ordinary conditions of daily life in that the Veteran reported difficulty hearing over the telephone, hearing his wife, and hearing the examiner.  

Applying the method for evaluating hearing loss to the results of the Veteran's audiology evaluation, the September 2009 audiometric evaluation reveals Level I hearing acuity in the right ear, and Level II hearing acuity in the left ear using Table VI. Application of these findings to Table VII corresponds to a noncompensable (0 percent) rating under 38 C.F.R. § 4.85, Diagnostic Code 6100.  Applying the method for evaluating hearing loss to the results September 2014 audiometric evaluation reveals Level II hearing acuity in the right ear, and Level II hearing acuity in the left ear using Table VI. Application of these findings to Table VII corresponds to a noncompensable (0 percent) rating under 38 C.F.R. § 4.85, Diagnostic Code 6100.

The September 2009 and September 2014 audiometric examinations are the only clinical evidence of record that is valid and complete for rating purposes during the entire period on appeal.  No competent evidence showing more severe hearing loss during any period on appeal has been submitted.  Accordingly, as the record does not contain any audiological findings during the relevant appeals period that would entitle the Veteran to a higher compensable rating for his bilateral hearing loss under 38 C.F.R. § 4.85 or 38 C.F.R. § 4.86, the Board finds that the Veteran is not entitled to a compensable rating for bilateral hearing loss.  In this regard, the Board notes that an exceptional hearing loss pattern has not been demonstrated in either ear at any time during the appeal period.  

In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in the final report because of the potential application of 38 C.F.R. § 3.321(b) in considering whether referral for an extra-schedular rating is warranted.  Unlike the rating schedule for hearing loss, 38 C.F.R. § 3.321(b) does not rely exclusively on objective test results to determine whether a referral for an extra-schedular rating is warranted.  Martinak v. Nicholson, 21 Vet. App. 447 (2007).

The September 2014 VA examiner specifically set forth the functional effects of the Veteran's hearing disability, including a finding that the Veteran's bilateral hearing loss impacted ordinary conditions of daily living.  Specifically, that the Veteran reported difficulty hearing over the telephone, hearing his wife, and hearing the examiner.  The Board finds that the record contains the type of evidence regarding functional impact as required.

The Board has also considered written statements associated with the record in which he asserted that he had difficulty hearing over the telephone, his wife and the examiner.  A veteran is competent to describe symptoms of which he has first-hand knowledge.  Charles v. Principi, 16 Vet. App. 370 (2002); Washington v. Nicholson, 19 Vet. App. 362 (2005).  As the Board finds that hearing loss and its symptomatology are something that the Veteran, as a layperson, is competent to describe, his statements carry probative weight.  Barr v. Nicholson, 21 Vet. App. 303 (2007); Falzone v. Brown, 8 Vet. App. 398 (1995).

However, the Board is bound in its decisions by the VA regulations for the rating of hearing loss.  38 U.S.C.A. § 7104(c) (West 2002).  Rating hearing loss requires the use of the Maryland CNC speech discrimination test and the pure tone threshold average determined by an audiometry test.  The Board does not discount the difficulties that the Veteran experiences as a result of bilateral hearing loss. However, disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric evaluations.  The Board has no discretion in the matter.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).  The Board is bound by law to apply VA's rating schedule based on the Veteran's audiometry results.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2014).  Thus, in this case, there is no basis for a compensable rating at any period during the appeal. 

C.  Additional Considerations

In addition, the Board notes that there is no evidence of an exceptional or unusual disability picture with related factors, such as marked interference with employment or frequent periods of hospitalization, so as to warrant referral of the case to appropriate VA officials for consideration of an extra schedular rating.  38 C.F.R. § 3.321(b)(1) (2014); Shipwash v. Brown, 8 Vet. App. 218 (1995).  The record does not show that the Veteran has been hospitalized for his service-connected bilateral hearing loss or lumbar spine disability.  There is no objective evidence showing that either condition has caused marked interference with employment beyond that anticipated by the assigned rating.  The rating criteria reasonably describe the Veteran 's disability level and symptomatology and provide for higher ratings for additional or more severe symptoms than currently shown by the evidence.  Therefore, his disability picture for his lumbar spine disability and his bilateral hearing loss disability is contemplated by the rating schedule, and the assigned schedular rating is adequate.  Thun v. Peake, 22 Vet. App. 111 (2008).

Finally, although the Veteran has submitted evidence of a medical disability, he has not submitted evidence of unemployability, or claimed to be unemployable. Therefore, the issue of entitlement to a total disability rating based upon individual unemployability due to a service-connected disability has not been raised.  Rice v. Shinseki, 22 Vet. App. 477 (2009); Roberson v. Principi, 251 F.3d. 378 (Fed. Cir. 2001).  

ORDER

Entitlement to a rating in excess of 10 percent for degenerative disc disease (DDD) with degenerative joint disease (DJD) of the lumbar spine for the period prior to August 25, 2014, and in excess of 40 percent thereafter, is denied.

Entitlement to a compensable rating for bilateral hearing loss is denied.



____________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs