Citation Nr: 0809797 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 04-16 217 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for degenerative disc disease of the lumbar spine at L5-S1 (DDD). 2. Entitlement to an evaluation in excess of 40 percent for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David Ganz, Associate Counsel INTRODUCTION The veteran had active military service from February 1959 to March 1985. This matter comes to the Board of Veterans' Appeals (Board) from a December 2003 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Waco, Texas, which denied entitlement to a rating in excess of 10 percent for DDD and a rating in excess of 0 percent for bilateral hearing loss. Subsequent rating decisions by the RO increased the rating for DDD to 20 percent and the rating for bilateral hearing loss to 40 percent. FINDINGS OF FACT 1. The veteran's degenerative disc disease of the lumbar spine at L5-S1 is manifested by thoracolumbar range of motion measuring 50 degrees forward flexion at its most limited; no findings of favorable or unfavorable ankylosis of any part of the spine; no incapacitating episodes requiring bed rest; and a lack of severe limitation of motion of the lumbar spine. 2. VA audiometric testing reveals no worse than Level VIII hearing acuity in the right ear and Level VII hearing acuity in the left ear. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for degenerative disc disease of the lumbar spine at L5-S1 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5235-5243 (2007); 38 C.F.R. § 4.71a, DC 5292 (in effect prior to September 26, 2003). 2. The schedular criteria for an evaluation in excess of 40 percent for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 4.85, DC 6100 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159. The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant with notice in May 2004, subsequent to the initial adjudication in December 2003. The RO provided notice pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006) in March 2006, subsequent to the initial adjudication. While notice was not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process and, in fact, the veteran's representative has submitted written argument on the issues on three occasions. The claim was subsequently readjudicated in an April 2004 statement of the case (SOC) and March 2005, May 2005, May 2007, and October 2007 supplemental statements of the case (SSOC), following the provision of notice. The veteran has not alleged any prejudice as a result of the untimely notification, nor has any been shown. The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004), requesting the claimant to provide evidence in his or her possession that pertains to the claims. Although the letters discussed above did not specifically list the criteria for receiving a higher rating for DDD or bilateral hearing loss, pursuant to Vazquez-Flores v. Peake, No. 05-355 (U.S. Vet. App. Jan. 30, 2008), the veteran and his representative have demonstrated actual knowledge of the evidence necessary to substantiate an increased rating claim for the DDD and bilateral hearing loss disabilities by his representative's contentions that the veteran is entitled to a higher evaluation based on the specific rating criteria for both of the disabilities. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (VA can demonstrate that a notice defect is not prejudicial if it can be demonstrated... that any defect in notice was cured by actual knowledge on the part of the appellant that certain evidence (i.e., the missing information or evidence needed to substantiate the claim) was required and that the appellant should have provided it.); see also Overton v. Nicholson, 20 Vet. App. 427 (2006). Furthermore, a March 2006 letter informed the veteran that in determining a disability rating the RO considers evidence of the nature and symptoms of the condition, severity and duration of the symptoms, and impact of the condition and symptoms on employment, and an April 2004 SOC listed the specific criteria for a higher rating under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5235-5243 (2007) and 38 C.F.R. 4.85, DC 6100 (2007) which are the criteria the veteran's DDD and bilateral hearing loss disabilities are currently rated under, respectively. Additionally, the April 2004 SOC listed the specific criteria for a higher rating under 38 C.F.R. § 4.71a, DC 5292 (prior to September 26, 2003). The claim was subsequently readjudicated in a May 2007 SSOC, following the provision of notice. The March 2006 letter and April 2004 SOC collectively, in addition to the veteran's actual knowledge, have given the veteran notice pursuant to Vazquez-Flores v. Peake. VA has obtained service medical records, assisted the veteran in obtaining evidence, and afforded the veteran medical examinations and opinions as to the severity of his disabilities. All known and available records relevant to the issue on appeal have been obtained and associated with the veteran's claims file; and the veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the veteran is not prejudiced by a decision on the claim at this time. I. Degenerative Disc Disease The RO originally granted service connection for DDD in May 1986, assigning a 10 percent rating under 38 C.F.R. § 4.71a, Diagnostic Codes (DC) 5003-5293 and an effective date of April 1, 1985. The December 2003 rating decision presently on appeal continued this evaluation, and an October 2007 rating decision granted entitlement to a rating of 20 percent for DDD. The veteran seeks an evaluation in excess of 20 percent for DDD. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In cases where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In rating a musculoskeletal disability, functional loss due to pain is a factor. Other factors include less movement than normal, weakened movement, excess fatigability, pain on movement, and painful motion. 38 C.F.R. § 4.40, 4.45, and 4.59. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). During the pendancy of the veteran's appeal, VA promulgated new regulations concerning the evaluation of the disabilities of the spine based on range of motion and lumbosacral strain, effective September 26, 2003. See 68 Fed. Reg. 51,454 (Aug. 27, 2003) (codified at 38 C.F.R. pt. 4). The September 2003 amendments renumbered the diagnostic codes and created a general rating formula for rating diseases and injuries of the spine, based largely on limitation or loss of motion, as well as other symptoms. On September 26, 2003, DC 5293 became DC 5243, however the substance of it remained the same. The veteran's disability will not be rated under DC 5293, however, because he filed his claim in April 2003, which was after the September 2002 substantive change to DC 5293. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C.A. § 5110(g); VAOPGCPREC 3-2000. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. Therefore, as each set of amendments discussed above has a specified effective date without provision for retroactive application, neither set of amendments may be applied prior to its effective date. As of those effective dates, the Board must apply whichever version of the rating criteria is more favorable to the veteran. Diagnostic Code 5292 (in effect prior to September 26, 2003) provided ratings based on limitation of motion of the lumbar spine. Slight limitation of motion of the lumbar spine was to be rated 10 percent disabling; moderate limitation of motion of the lumbar spine was to be rated 20 percent disabling; and severe limitation of motion of the lumbar spine was to be rated 40 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5292 (revised in September 2002 and renumbered as Diagnostic Code 5243 effective September 26, 2003 provides that intervertebral disc syndrome (IVDS) is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The General Rating Formula for Diseases and Injuries of the Spine provides a 30 percent disability rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favourable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned for unfavourable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favourable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavourable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavourable ankylosis of the entire spine. 38 C.F.R. § 4.71a. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2) provides that, if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a. A VA examination was conducted in May 2003. The examiner reviewed the veteran's claims file. The flexion forward of his back was to 90 degrees with mild discomfort noted, however during repetitive motion of his back there were mild signs of fatigability, but there are no changes in the flexion of his back. The examiner reported that during acute flare-ups there is about a 50 percent reduction of his flexion. The veteran had 30 degrees of flexion backward with mild pain that starts around 10 degrees and ends at 30 degrees. Lateral flexion, both right and left, to 30 degrees, and rotation to 30 degrees. Imaging of the lumbar spine demonstrated moderate osteoporosis, and mild tenderness to deep palpation in the lumbosacral area was reported. A diagnosis of chronic back strain secondary to severe DDD of the lumbar spine at the level of L5-S1 with no apparent evidence of sciatic radiculopathy was noted. A VA examination was conducted in November 2004. The examiner reviewed the veteran's claims file. Active and passive range of motion testing shows forward flexion of the lumbosacral spine of 0-90 degrees, extension from 0-30 degrees, and right and left lateral rotation of 30 degrees. Repetitive bending was done by the veteran with no difficulty. The examiner reported that during flare-ups and during repetitive bending the veteran will have no limitation of function or reduction of lumbar spine flexion. Decreased sensation on the dorsum of the toes and dorsum of the feet bilaterally were reported. Imaging indicated a diagnosis of DDD of the lumber spine. A VA examination was conducted in September 2007. The examiner reviewed the veteran's claims file and an MRI of the lumbosacral spine that was conducted on April 4, 2007. An examination of the lumbosacral spine indicated forward flexion of 0 to 50 degrees, with pain at 50 degrees, right and left lateral flexion from 0 to 20 degrees, backward extension of 0 to 15 degrees, and right and left lateral rotation of 0 to 20 degrees. Additional functional limitation of motion of the lumbosacral spine during flare-up and repetitive use limited to 0 to 50 degrees on forward flexion and 0 to 15 degrees backward extension was noted. A neurologic examination revealed no evidence of muscle atrophy or decrease in muscle tone. Lasegue sign was positive on the right lower extremity, while Babinski and Romberg signs were absent. A diagnosis of DDD lumbar spine, with subjective radiculopathy, bilateral lower extremities, was given. To receive a rating higher than 20 percent under the former criteria of DC 5292 for limitation of motion of the lumbar spine, medical evidence must show severe limitation of motion of the lumbar spine. The VA examinations of record shows a range of forward flexion of no worse than 0 to 50 degrees, right and left lateral flexion from 0 to 20 degrees, backward extension of 0 to 15 degrees, and right and left lateral rotation of 0 to 20 degrees. Thus, the Board is unable to reasonably characterize as "severe" the veteran's limitation of motion of his lumbar spine as required for a higher rating under former Diagnostic Code 5292. To receive a rating higher than 20 percent for IVDS, the medical evidence must show that there is forward flexion of the cervical spine of 15 degrees or less, or favorable ankylosis of the entire cervical spine; unfavorable ankylosis of the entire cervical spine, or forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine; unfavorable ankylosis of the entire thoracolumbar; or unfavorable ankylosis of the entire spine; or incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. 4.71a, DC 5235-5243. None of the VA examiners found any of these conditions were manifested, and there is no evidence that any physician has prescribed bed rest due to the veteran's back disability. Therefore, a higher rating cannot be assigned. Likewise, the presence of pain (whether it radiates or not) is already contemplated in the 20 percent evaluation assigned under the General Rating Formula. Accordingly the evidence does not establish that a higher evaluation under 38 C.F.R. § 4.71a, DC 5235-5243, is warranted. As to whether separate evaluations for neurological manifestations are warranted pursuant to 38 C.F.R. 4.71a DC 5235-5243, Note (1), the RO has granted the veteran entitlement to service connection for radiculopathy of the right and left lower extremities as secondary to the veteran's DDD, assigning separate 10 percent evaluations with effective dates of April 4, 2007, for both disabilities, and those issues are not on appeal. There is no evidence of record indicating that other neurological manifestations are present. In numerous documents of record the veteran states the severity of his back disability merits a higher rating. Although the veteran is competent to report the symptoms that he has experienced, he is not competent to offer an opinion as to matters requiring medical expertise, such as the severity of his disability. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Thus, while the veteran's lay assertions have been considered they do not outweigh the medical evidence of record, which shows that the criteria for a disability rating higher than 20 percent have not been met at any time during the course of the claim. Gilbert v. Derwinski, 1 Vet. App. 49; 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.71a, DC 5235-5243; DC 5292 (effective prior to September 26, 2003). As the criteria for assignment of the next higher 30 percent rating are not met, the criteria for an even higher rating are likewise not met. The preponderance of the evidence is against the claim; there is no doubt to be resolved; and an increased rating for DDD of the lumbar spine at L5-S1 is not warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56; 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. II. Bilaterial Hearing Loss The RO originally granted service connection for a bilateral hearing loss disability in May 1986, assigning a 0 percent rating with an effective date of April 1, 1985. The December 2003 rating decision presently on appeal continued this rating. A March 2005 rating decision granted entitlement to an evaluation of 20 percent for bilateral hearing loss. A May 2007 rating decision granted entitlement to an evaluation of 40 percent for bilateral hearing loss. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In cases where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). According to the Schedule for Rating Disabilities, evaluations for bilateral hearing loss range from non- compensable to 100 percent based on organic impairment of hearing acuity. Evaluation of hearing impairment is arrived at by a mechanical comparison of the results of audiometric examination to two tables under 38 C.F.R. § 4.85 (2006). Average puretone decibel loss for each ear is located on Table VI along a horizontal axis, and percent of discrimination is located along a vertical axis. "Puretone threshold average" as used in Tables VI and VIa, is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. This average is used in all cases (including those in Sec. 4.86) to determine the Roman numeral designation for hearing impairment where the axes intersect. The results are then matched between the "better" ear and the "poorer" ear on Table VII to produce a disability rating under Code 6100. The veteran's bilateral hearing loss is presently evaluated as 40 percent disabling. To receive a 50 percent evaluation for bilateral hearing loss the evidence must show that the hearing loss rises to the level of severity proscribed in 38 C.F.R. § 4.85, DC 6100, Table VII. A July 2003 VA audiological examination reported that the puretone thresholds, in decibels, were as follows: 1000 hertz 2000 hertz 3000 hertz 4000 hertz Right Ear: 40 60 70 80 Left Ear: 45 50 50 40 The veteran's average puretone decibel loss average was reported as 63 decibels in the right ear and 46 decibels in the left ear. Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 94 percent in the left ear. The veteran's claims file was reviewed by the examiner and the pertinent diagnosis was mild to severe sensorineural hearing loss in the right ear and mild to moderate sensorineural hearing loss in the left ear. A November 2004 VA audiological examination reported that the puretone thresholds, in decibels, were as follows: 1000 hertz 2000 hertz 3000 hertz 4000 hertz Right Ear: 45 65 70 75 Left Ear: 50 70 70 80 The veteran's average puretone decibel loss average was reported as 64 decibels in the right ear and 68 decibels in the left ear. Speech audiometry revealed speech recognition ability of 74 percent in the right ear and of 72 percent in the left ear. The pertinent diagnosis was mild low to moderate-severe mid to severe high frequencies sensorineural hearing loss in the right ear and mild low to severe mid-high frequencies sensorineural hearing loss in the left ear. An April 2007 VA audiological examination reported that the puretone thresholds, in decibels, were as follows: 1000 hertz 2000 hertz 3000 hertz 4000 hertz Right Ear: 50 70 75 90 Left Ear: 55 60 60 50 The veteran's average puretone decibel loss average was reported as 71 decibels in the right ear and 59 decibels in the left ear. Speech audiometry revealed speech recognition ability of 48 percent in the right ear and of 52 percent in the left ear. The veteran's claims file was reviewed by the examiner and the pertinent diagnosis was moderate to profound sensorineural hearing loss in the right ear and moderate to severe sensorineural hearing loss in the left ear. When the hearing examination findings are applied to 38 C.F.R., §§ 4.85, 4.86 Tables VI and VIa, they show hearing no worse than Level VIII in the right ear and Level VII in the left ear. When these findings are applied to the criteria set out in 38 C.F.R., § 4.85, Table VII, they yield a disability rating of 40 percent, but no higher. In light of the evidence of record, the veteran's bilateral sensorineural hearing loss is currently rated in accordance with his present level of ratable disability, as set forth in applicable hearing schedule criteria. 38 C.F.R., § 4.85, DC 6100, Table VII. In numerous documents of record the veteran states the severity of his hearing loss merits a higher rating. Although the veteran is competent to report the symptoms that he has experienced, he is not competent to offer an opinion as to matters requiring medical expertise, such as the severity of his disability. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Thus, while the veteran's lay assertions have been considered they do not outweigh the medical evidence of record, which shows that the criteria for a rating in excess of 40 percent for bilateral hearing loss disability have not been met. Gilbert v. Derwinski, 1 Vet. App. 49; 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.85, DC 6100. As the criteria for assignment of the next higher 50 percent rating are not met, the criteria for an even higher rating are likewise not met. The Board is cognizant of, and indeed, sympathetic to the veteran's argument pertaining to the difficulties he has experienced associated with his hearing loss. For purposes of rating disabilities which arise out of a service connected hearing loss, however, the Board is restricted to a mechanical application of the rating schedule to the numeric values found. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The preponderance of the evidence is against the claim; there is no doubt to be resolved; and an increased rating is not warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56; 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has considered whether the veteran's hearing loss disability picture warrants a compensable rating on an extraschedular basis. Regulation permits extra-schedular rating when "the schedular evaluations are found to be inadequate ... [because] the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). The rating schedule, however, is meant to compensate for the average impairment in civil occupations generally resulting from disability. 38 C.F.R. § 3.321. In this case, the veteran has presented no evidence that would indicate that there exist such factors as marked interference with employment or frequent periods of hospitalization resulting from his service-connected bilateral hearing loss disability. Likewise, the veteran does not have an exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86. ORDER Entitlement to an evaluation in excess of 20 percent for degenerative disc disease of the lumbar spine at L5-S1 is denied. Entitlement to an evaluation in excess of 40 percent for bilateral hearing loss is denied. ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs