Citation Nr: 0810101	
Decision Date: 03/27/08    Archive Date: 04/09/08

DOCKET NO.  04-37 850	)	DATE
	)
	)

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


THE ISSUES

1. Whether new and material evidence has been presented to 
reopen the claim of service connection for bilateral hearing 
loss. 

2. Entitlement to a disability rating higher than 20 percent 
for arthritis of the cervical and lumbar segments of the 
spine with degenerative changes.  


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

T. Azizi-Barcelo, Associate Counsel


INTRODUCTION

The veteran, who is the appellant, served on active duty from 
August 1956 to August 1976.

This matter is before the Board of Veterans' Appeals (Board) 
on appeal of rating decisions in June 2004 and December 2004 
of a Department of Veterans Affairs (VA) Regional Office 
(RO).

In August 2007, the veteran withdrew his request for a 
hearing.  38 C.F.R. § 20.704. 


FINDINGS OF FACT

1. In a rating decision in December 1976, the RO denied 
service connection for bilateral hearing loss; after the 
veteran was notified of the adverse determination and of his 
procedural and appellate rights, he did not appeal the 
adverse determination. 

2. The additional evidence presented since the rating 
decision by the RO in December 1976 relates to an 
unestablished fact necessary to substantiate the claim, and 
raises a reasonable possibility of substantiating the claim. 

3. Bilateral hearing loss was not affirmatively shown to have 
had onset during service; bilateral sensorineural hearing 
loss was not manifested to a compensable degree within one 
year from the date of separation from service; bilateral 
hearing loss, first diagnosed after service beyond the one-
year presumptive period for bilateral sensorineural hearing 
loss as a chronic disease, is unrelated to an injury, 
disease, or event of service origin. 

4. Degenerative joint disease of the cervical spine is 
manifested by pain; forward flexion to 40 degrees, extension 
to 35 degrees, lateral flexion, right and left, to 35 
degrees, and rotation, right and left, to 70 degrees; X-ray 
findings of degenerative changes; and no objective 
neurological abnormality.

5. Degenerative joint disease of the lumbar spine is 
manifested by pain; forward flexion to 90 degrees, extension 
to 25 degrees, lateral flexion, right and left, to 25 
degrees, and rotation, left and right, to 30 degrees; X-ray 
findings of degenerative changes; and no objective 
neurological abnormality. 


CONCLUSIONS OF LAW

1. The rating decision in December 1976 by the RO, denying 
service connection for bilateral hearing loss, became final. 
38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2007).

2. The additional evidence presented since the rating 
decision in December 1976 by the RO, denying the claim of 
service connection for bilateral hearing loss, is new and 
material, and the claim is reopened.  38 U.S.C.A. § 5108 
(West 2002& Supp. 2007); 38 C.F.R. § 3.156 (2007).

3. Bilateral hearing loss was not incurred in or aggravated 
by service, and service incurrence may not be presumed for 
bilateral sensorineural hearing loss as a chronic disease. 38 
U.S.C.A. §§ 1131, 1137, 5107(b) (West 2002 & Supp. 2007); 38 
C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2007). 

4. The criteria for a rating higher than 10 percent for 
degenerative joint disease of the cervical spine have not 
been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 
2007); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 
5003, 5242 (2007).

5. The criteria for a rating higher than 10 percent for 
degenerative joint disease of the lumbar spine have not been 
met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2007); 
38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 
5242 (2007).



The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and 
implemented in part at 38 C.F.R § 3.159, amended VA's duties 
to notify and to assist a claimant in developing information 
and evidence necessary to substantiate the claims.

Duty to Notify

Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of 
the information and evidence not of record that is necessary 
to substantiate the claims, which information and evidence VA 
will obtain, and which information and evidence the claimant 
is expected to provide.  Under 38 C.F.R. § 3.159, VA must 
request that the claimant provide any evidence in the 
claimant's possession that pertains to the claims.  

Also, the VCAA notice requirements apply to all five elements 
of a service connection claim.  The five elements are: 
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). 

In a new and material evidence claim, the VCAA notice must 
include the evidence and information that is necessary to 
reopen the claim and the evidence and information that is 
necessary to establish the underlying claim for the benefit 
sought.  Kent v. Nicholson, 20 Vet. App. 1 (2006).

In a claim for increase, the VCAA notice requirements are the 
type of evidence needed to substantiate the claim, namely, 
evidence demonstrating a worsening or increase in severity of 
the disability and the effect that worsening has on the 
claimant's employment and daily life.  



Also, if the Diagnostic Code under which the claimant is 
rated contains criteria necessary for entitlement to a higher 
disability rating that would not be satisfied by the claimant 
demonstrating a noticeable worsening or increase in severity 
of the disability and the effect of that worsening has on the 
claimant's employment and daily life (such as a specific 
measurement or test result), the VA must provide at least 
general notice of that requirement to the claimant.  Vazquez-
Flores v. Peake, No. 05-355 (U.S. Vet. App. Jan. 30, 2008). 

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

Claim to Reopen

As the application to reopen the claim of service connection 
for bilateral hearing loss is reopened, compliance with Kent 
as to the evidence necessary to reopen the claim is moot. 

The RO did provided pre- and post- adjudication VCAA notice 
on the underlying claim of service connection for bilateral 
hearing loss by letters, dated in April 2004 and in March 
2006.  The notice included the type of evidence needed to 
substantiate the underlying claim of service connection, 
namely, evidence of an injury or disease or event, causing an 
injury or disease, during service; evidence of current 
disability; evidence of a relationship between the current 
disability and the injury or disease or event, causing an 
injury or disease, during service.  

Claim for Increase

On the claim for increase, the RO provided pre- and post- 
adjudication VCAA notice by letters, dated in August 2004 and 
in March 2006.  

The veteran was notified of the evidence needed to 
substantiate the claim for increase, namely, evidence that 
the disability had gotten worse and the effect of the 
disability had on the employment and daily life.  

On both claims, the veteran was informed that VA would obtain 
service records, VA records, and records of other Federal 
agencies, and that he could submit other records not in the 
custody of a Federal agency, such as private medical records, 
or with his authorization VA would obtain any such records on 
his behalf.  He was also asked to submit evidence, which 
would include that in his possession, in support of his 
claims.  The notice included the general provision for the 
effective date of the claims and for the degree of disability 
assignable. 

As for content of the VCAA notice, the documents 
substantially complied with the specificity requirements of 
Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying 
evidence to substantiate a claim and the relative duties of 
VA and the claimant to obtain evidence); of Charles v. 
Principi, 16 Vet. App. 370 (2002) (identifying the document 
that satisfies VCAA notice); of Pelegrini v. Principi, 
18 Vet. App. 112 (2004) (38 C.F.R. § 3.159 notice); of 
Dingess v. Nicholson, 19 Vet. App. 473 (notice of the 
elements of the claim); and of Vazquez-Flores v. Peake, No. 
05-0355, (U.S. Vet. App. Jan. 30, 2008) (evidence 
demonstrating an increase in severity, except for the general 
notice of the criteria of the Diagnostic Code under which the 
claimant is rated). 

To the extent that the VCAA notice was provided after the 
initial adjudications, the timing of the notice did not 
comply with the requirement that the notice must precede the 
adjudication.  The procedural defect was cured as after the 
RO provided substantial content-complying VCAA notice the 
claims were readjudicated as evidenced by the supplemental 
statements of the case, dated in February, in April, in June, 
and in October 2007.  Mayfield v. Nicholson, 499 F.3d 1317 
(Fed. Cir. 2007) (Timing error cured by adequate VCAA notice 
and subsequent readjudication without resorting to 
prejudicial error analysis.).

To the extent that the VCAA notice did not include the 
criteria of the Diagnostic Codes under which the veteran is 
rated, where as here the veteran already has notice of the 
pertinent Diagnostic Codes and the rating criteria as 
provided in the statement of the case, there is no reasonable 
possibility that further notice of the exact same information 
would aid in substantiating the claim.  

As the content error did not affect the essential fairness of 
the adjudication of the claim for increase, the presumption 
of prejudicial error as to the content error in the VCAA 
notice is rebutted.  Wensch v. Principi, 15 Vet. App. 362, 
368 (2001) (compliance with the VCAA is not required if no 
reasonable possibility exists that any notice or assistance 
would aid the appellant in substantiating the claim); Sanders 
v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007); Vazquez-Flores 
v. Peake, No. 05-0355, (U.S. Vet. App. Jan. 30, 2008).

Duty to Assist

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to 
assist the claimant in obtaining evidence necessary to 
substantiate the claim.  The RO has obtained service records 
and VA records and has afforded the veteran VA examinations.  
As there is no indication of the existence of additional 
evidence to substantiate the claims, no further assistance to 
the veteran is required to comply with the duty to assist. 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Claim to Reopen 

Procedural and Factual Background

In a rating decision in December 1976, the RO denied service 
connection for bilateral hearing loss because bilateral 
hearing loss for the purpose of VA disability compensation 
was not shown.  

After the veteran was notified of the adverse determination 
and of his procedural and appellate rights, he did not appeal 
the rating decision and the rating decision by the RO became 
final by operation of law.  38 C.F.R. § 3.104.



For the purpose of VA disability compensation, impaired 
hearing will be considered to be a disability when the 
auditory threshold in any of the frequencies 500, 1000, 2000, 
3000, 4000 Hertz is 40 decibels or greater; or when the 
auditory thresholds for at least three of the frequencies 
500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or 
greater; or when speech recognition scores using the Maryland 
CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

The evidence of record and considered by the RO at the time 
of the rating decision in December 1976 is summarized as 
follows:  

The service medical records contain no complaint, finding, 
history, or treatment for hearing loss.  On audiological 
testing for flight physicals in July 1963, in December 1963, 
in October 1964, in November 1965, in January 1967, in 
December 1967, in December 1968, in January 1970, in December 
1970 (left ear only), in November 1972, in November 1973, in 
November 1974, and on retirement examination in October 1975, 
the auditory threshold in each of the tested frequencies of 
500, 1000, 2000, 3000, and 4000 Hertz was less than 40 
decibels for each ear; or the auditory thresholds for at 
least three of the tested frequencies of 500, 1000, 2000, 
3000, and 4000 Hertz were less than 26 decibels for each ear.  
On audiological testing in December 1970 for the right ear, 
the auditory thresholds for at least three of the tested 
frequencies of 500, 1000, 2000, 3000, and 4000 Hertz were 26 
decibels or greater. 

After service on VA examination in November 1976, the veteran 
complained of hearing loss of seven to eight years duration.  
On audiological testing, the auditory threshold in each of 
the tested frequencies of 500, 1000, 2000, 3000, and 4000 
Hertz was less than 40 decibels for each ear; and the 
auditory thresholds for at least three of the tested 
frequencies of 500, 1000, 2000, 3000, and 4000 Hertz were 
less than 26 decibels for each ear.  The speech recognition 
scores were 100 percent in the right ear and 96 percent in 
the left ear. 


Current Application

Although the prior rating decision of December 1976 became 
final, it may nevertheless be reopened if new and material 
evidence is presented.  38 U.S.C.A. §§ 7105(c) and 5108. 

Whether a previously denied claim should be reopened is a 
jurisdictional matter that must be addressed by the Board 
before the Board can consider the underlying claim. 
Therefore, regardless of the RO's decision, the Board must 
initially address the question of whether new and material 
evidence has been presented to reopen the claim. Jackson v. 
Principi, 265 F.3d 1366 (Fed. Cir. 2001).

The veteran submitted the current application to reopen the 
claim of service connection for bilateral hearing loss in 
February 2004. 

As the application was received after August 29, 2001, the 
current regulatory definition of new and material evidence 
applies.  New evidence means existing evidence not previously 
submitted to agency decision makers; material evidence means 
existing evidence that, by itself or when considered with 
previous evidence of record, relates to an unestablished fact 
necessary to substantiate the claim.  New and material 
evidence can be neither cumulative nor redundant of the 
evidence of record at the time of the last prior final denial 
of the claim sought to be reopened, and must raise a 
reasonable possibility of substantiating the claim. 
38 C.F.R. § 3.156(a).

For the purpose of establishing whether new and material 
evidence has been submitted, the credibility of the evidence, 
although not its weight, is to be presumed.  Justus v.  
Principi, 3 Vet. App. 510, 513 (1992).



Additional Evidence and Analysis 

In order that the additional evidence may be considered new 
and material under the current regulatory definition of new 
and material evidence, the evidence must relate to the basis 
for the prior denial of the claim, that is, the absence of 
bilateral hearing loss for the purpose of VA disability 
compensation. 

The additional evidence consists of a report of a VA 
audiology examination in May 2004.  The report shows that the 
auditory thresholds in the frequencies of 2000 and 4000 Hertz 
were 40 decibels for the right ear and greater than 40 
decibels in the left ear at the frequencies of 1000, 2000, 
3000, and 4000 Hertz.  The pertinent finding was bilateral 
sensorineural hearing loss. 

The audiology testing results and the finding of bilateral 
sensorineural hearing loss are new and material evidence 
because the evidence relates to an unestablished fact 
necessary to substantiate the claim, that is, evidence of 
current bilateral hearing loss that meets the criteria of 
hearing loss disability for the purpose of VA disability 
compensation, the absence of which was the basis for the 
previous denial of the claim by the RO in December 1976.  
Accordingly, the claim of service connection for bilateral 
hearing loss is reopened.  38 U.S.C.A. § 5108; 38 C.F.R. 
§ 3.156.

Merits Determination

As the claim of service connection for bilateral hearing loss 
is reopened, the Board will now consider the claim on the 
merits as did the RO as evidenced by the statement of the 
case without further procedural due process.  

Principles of Service Connection

Service connection may be granted for a disability resulting 
from an injury or disease incurred or aggravated in active 
military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 
3.303(a).  

Where a veteran has served 90 days or more, service 
incurrence may be presumed for sensorineural hearing loss, if 
sensorineural hearing loss is manifested to a compensable 
degree within the year after service. 38 U.S.C.A. §§ 1112, 
1137; 38 C.F.R. §§ 3.307, 3.309.

For the showing of chronic disease in service there is 
required a combination of manifestations sufficient to 
identify the disease entity and sufficient observation to 
establish chronicity at the time, as distinguished from 
merely isolated findings or a diagnosis including the word 
"chronic."  Continuity of symptomatology is required where 
the condition noted during service is not, in fact, shown to 
be chronic or where the diagnosis of chronicity may be 
legitimately questioned.  When the fact of chronicity in 
service is not adequately supported, then a showing of 
continuity after discharge is required to support the claim.  
38 C.F.R. § 3.303(b).

Service connection may be granted for any disease diagnosed 
after discharge, when all of the evidence establishes that 
the disease was incurred in service.  38 C.F.R. § 3.303(d). 

Analysis 

The veteran asserts that his hearing loss began in service as 
the result of exposure to aircraft noise.  The service 
medical records show that the veteran had annual flight 
physicals as an aircraft crew member.  Copies of service 
personnel records show that the veteran was an airborne 
communications systems technician and supervisor.  Therefore 
the veteran's allegation of exposure to aircraft noise is 
supported by the circumstances of his service as shown by the 
service medical and personnel records. 

In a statement in October 2004, the veteran stated that 
hearing loss was documented when he was discharged from 
active duty and that hearing loss has gotten worse over the 
years. 

The service medical records contain no complaint, finding, 
history, or treatment for hearing loss.  On audiological 
testing for flight physicals in July 1963, in December 1963, 
in October 1964, in November 1965, in January 1967, in 
December 1967, 
in December 1968, in January 1970, in December 1970 (left ear 
only), in November 1972, in November 1973, in November 1974, 
and on retirement examination in October 1975, the auditory 
threshold in each of the tested frequencies of 500, 1000, 
2000, 3000, and 4000 Hertz was less than 40 decibels for each 
ear; or the auditory thresholds for at least three of the 
tested frequencies of 500, 1000, 2000, 3000, and 4000 Hertz 
were less than 26 decibels for each ear.  On audiological 
testing in December 1970 for the right ear, the auditory 
thresholds for at least three of the tested frequencies of 
500, 1000, 2000, 3000, and 4000 Hertz were 26 decibels or 
greater. 

On the basis of the service medical records, current 
bilateral sensorineural hearing loss was not affirmatively 
shown during service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. 
§ 3.303(a).  

The service medical records do show that on audiology testing 
for the right ear in December 1970, the auditory thresholds 
for at least three of the tested frequencies of 500, 1000, 
2000, 3000, and 4000 Hertz were 26 decibels or greater, which 
is evidence of hearing loss as a disability under 38 C.F.R. 
§ 3.385, however, several audiology tests before and after 
December 1970, including on retirement examination in 1975, 
do not show right ear hearing loss as a disability. 

As there was a single, isolated finding of right ear hearing 
loss in December 1970 that met the VA standard for hearing 
loss as a disability among findings before and after December 
1970 of essentially nondisabling right ear hearing, the 
required combination of manifestations sufficient to identify 
the disease entity, bilateral hearing loss, and sufficient 
observation to establish chronicity during service are not 
adequately supported by the service medical records, and as 
the fact of chronicity in service is not adequately 
supported, then a showing of continuity after discharge is 
required to support the claim.  38 C.F.R. § 3.303(b).

After service, on VA examination in November 1976, the 
veteran complained of hearing loss of seven to eight years 
duration, dating to service.  On audiological testing, the 
auditory threshold in each of the tested frequencies of 500, 
1000, 2000, 3000, and 4000 Hertz was less than 40 decibels 
for each ear; and the auditory thresholds for at least three 
of the tested frequencies of 500, 1000, 2000, 3000, and 4000 
Hertz were less than 26 decibels for each ear.  The speech 
recognition scores were 100 percent in the right ear and 96 
percent in the left ear. 

On VA audiology examination in May 2004, based on audiology 
testing, the pertinent finding was bilateral sensorineural 
hearing loss. 

On VA ear examination in May 2004, the veteran gave a history 
of significant noise exposure over 20 years while in the 
service and progressive bilateral hearing loss since then.  
The examiner reported that after a review of the service 
medical records he found no evidence of chronic hearing loss 
during service, noting that audiometeric testing in 1974 and 
on retirement examination in 1975 revealed normal audiometric 
thresholds at all the tested frequencies.  After a review of 
the audiogram conducted by VA in May 2004, the examiner's 
diagnosis was bilateral sensorineural hearing loss.  The 
examiner then expressed the opinion that since the service 
medical records were negative for chronic hearing loss while 
on active duty in light of normal audiometric thresholds at 
retirement and as the current hearing loss occurred 
subsequent to service, it was less likely than not that the 
current hearing loss was related to service. 

In a report, dated in July 2007, a private 
audioprosthologist, who evaluated the veteran for hearing 
aids, stated that based on history by the veteran the 
veteran's hearing loss decreased during service, starting in 
1961 when working around jet aircraft.  After audiology 
testing, the private audioprosthologist found that the 
veteran had bilateral sensorineural hearing loss, and he 
expressed the opinion that the veteran lost the ability to 
process speech due to exposure to jet noise during service.

The period without documented symptoms of bilateral hearing 
loss from 1976 to 2004 is evidence against continuity of 
symptomatology.  38 C.F.R. § 3.303(b); Maxson v. West, 12 
Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 
230 F.3d 1330, 1333 (Fed. Cir. 2000) (It was proper to 
consider the veteran's entire medical history, including a 
lengthy period of absence of complaints.). 

And while the veteran has stated that he has had progressive 
bilateral hearing loss since service, the absence of medical 
evidence of continuity of symptomatology outweighs the 
veteran's statements of continuity, rendering the lay 
evidence less probative than the medical evidence on the 
question of continuity of symptomatology after service.  
Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).  
For this reason, continuity of symptomatology is not 
established.

Also, the record shows that bilateral hearing loss of the 
sensorineural type was first documented in 2004, more than 25 
years after service, well beyond the one-year presumptive 
period for sensorineural hearing loss as a chronic disease 
under 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309.

As for service connection based on the initial documentation 
of bilateral hearing loss after service under 38 C.F.R. § 
3.303(d), the evidence in favor of the claim consists of the 
opinion of a private audioprosthologist, who expressed the 
opinion that the veteran lost the ability to process speech 
due to exposure to jet noise during service. 

The evidence against the claim consists of the opinion of a 
VA examiner, who expressed the opinion that it was less 
likely than not that the current hearing loss was related to 
the veteran's service.  

With regard to medical opinions, the credibility and weight 
to be attached to a medical opinion are within the Board's 
province as finder of fact.  Guerrieri v. Brown, 4 Vet. App. 
467, 470-71 (1993).  Greater weight may be placed on one 
opinion over another depending on factors such as reasoning 
employed and whether or not, and the extent to which, the 
prior clinical records and other evidence were reviewed.  
Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). 

Factors for assessing the probative value of a medical 
opinion are the person's access to the claims file and the 
thoroughness and detail of the opinion.  Prejean v. West, 13 
Vet. App. 444, 448-9 (2000).  

The private audioprosthologist, who expressed the favorable 
opinion, that is, that the veteran lost the ability to 
process speech due to exposure to jet noise during service, 
did not have access to the veteran's file.  While the 
veteran's exposure to aircraft noise during service is 
supported by the circumstances of his service as shown by the 
service medical and personnel records, the private 
audioprosthologist did not account for the fact that chronic 
bilateral hearing loss was not documented during service on 
the basis of audiology testing from 1963 to 1975, including 
on retirement examination in 1975.  

In contrast, the VA examiner reviewed the veteran's file and 
after the review of the record, the VA examiner expressed the 
opinion that since the service medical records were negative 
for chronic hearing loss while on active duty in light of 
normal audiometric thresholds at retirement and as the 
current hearing loss occurred subsequent to service, it was 
less likely than not that the current hearing loss was 
related to service.  

As the value of a medical opinion is dependent, in part, upon 
the extent to which it reflects clinical data or other 
rationale to support the opinion, Bloom v. West, 12 Vet. App. 
185, 187 (1999), and as the medical opinion against the claim 
was based on a review of the entire record and contained a 
rationale for the opinion, which was consistent with the 
facts in the record, the Board finds that the opinion of the 
VA examiner, which opposes rather than supports the claim, 
more probative of the question of whether the current 
bilateral hearing loss, first diagnosed in 2004 after 
service, is related to noise exposure during service, and the 
opinion outweighs the favorable opinion.  

As for the veteran's statements relating his current 
bilateral hearing loss to service, where as here, the 
question is one of medical causation, competent medical 
evidence is required to substantiate the claim because a lay 
person is not qualified 
through education, training, and expertise to offer an 
opinion on medical causation.  38 C.F.R. § 3.159; Jandreau v. 
Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Therefore the 
veteran's statements are not competent evidence on the 
question of medical causation, that is, the relationship 
between the current bilateral hearing loss and service. 

As the Board may consider only independent medical evidence 
to support its finding as to a question involving medical 
causation, which is not capable of lay observation, and as 
the preponderance of the evidence is against the claim of 
service connection for the reasons articulated, the benefit-
of-the-doubt standard of proof does not apply.  38 U.S.C.A. 
§ 5107(b). 

II. Claim for Increase 

Factual Background

By a rating decision in December 1976, the RO granted service 
connection for arthritis of the cervical spine and lumbar 
spine with degenerative changes, and evaluated the disability 
as 20 percent disabling.  In August 2004, the veteran 
submitted a claim for an increased rating. 

On VA examination in October 2004, the veteran complained of 
pain in the cervical and lumbar spine.  He denied radiating 
pain or incontinence.  Range of motion of the cervical spine 
revealed flexion to 40 degrees, extension to 35 degrees, and 
lateral movement to 60 degrees with mild discomfort.  The 
veteran was able to tilt the head to the right and the left 
to 45 degrees, respectively, with discomfort.  Tendon 
reflexes at the elbows was 1 out of 4, and it was absent at 
the wrists.  There was slight pain on range of motion of the 
neck.  Hand grip, sensation to pinprick and vibratory 
stimulation of the arms were normal.  X-rays of the cervical 
spine revealed degenerative changes at C3-4 and C5-6.  The 
examiner diagnosed degenerative joint disease of the cervical 
spine with moderate symptoms and minimal disability.

Physical examination of the lumbar spine revealed extension 
to 30 degrees and flexion to 110 degrees.  Lateral movement 
to the right and the left was to 30 degrees, bilaterally.  
Rotary movement was to 65 degrees, bilaterally.  There was no 
painful motion of the low back.  His gait was normal and he 
was able to walk on his heels and toes.  Straight leg raising 
was negative bilaterally.  Tendon reflexes were 1 out of 4 in 
the knees and ankles, bilaterally.  Pulses in the feet were 
normal.  Sensation to pinprick and vibratory stimulations of 
the legs were normal.  X-rays of the lumbar spine revealed 
minimal degenerative disc disease at L4-5 and degenerative 
changes of the lower facet joints and lower sacroiliac 
joints.  The examiner diagnosed degenerative joint disease of 
the lumbar spine with back pain and moderate symptoms, and 
minimal disability with slight progression.   

The examiner noted no additional limitation of motion with 
repetitive use or during flare-ups.  There was no evidence of 
excessive fatigability, incoordination, spasms, weakness or 
tenderness.  The veteran experienced no incapacitating 
episodes over the previous 12 months because of his cervical 
or lumbar spine disabilities.  

On VA cervical spine examination in May 2007, the veteran 
complained of constant, daily pain in the neck.  He rated the 
pain as 3 to 4 on a scale of 1 to 10.  He denied radiating 
pain, additional limitation of motion with flare-ups, 
numbness, urinary or fecal incontinence, or incapacitating 
episodes.  On physical examination, the cervical spine showed 
normal curvature.  There was no tenderness and no deformities 
were noted.  Deep tendon reflexes of the upper extremities 
were 1+ bilaterally.  Flexion was to 40 degrees without pain 
and extension was to 35 degrees without pain.  Left and right 
lateral flexion was to 35 degrees, bilaterally, without pain.  
Left and right lateral rotation was to 70 degrees without 
pain.  Active range of motion did not produce additional 
pain, fatigue, incoordination, or weakness.  There was no 
additional limitation of motion with repetitive use.  There 
was no evidence of muscle spasms or atrophy.  Motor skills, 
pinprick sensation and strength were normal in the upper 
extremities.  The examiner diagnosed degenerative changes of 
the facet joints C2 and C3 and chronic neck pain.    

With respect to the lumbar spine disability, the veteran 
complained of constant, daily low back pain, rated as 7 out 
of 10.  He reported an episode of severe pain the preceding 
year lasting 4 to 5 hours.  The veteran denied radiation of 
pain, numbness, additional limitation of motion with flare-
ups, urinary or fecal incontinence, or incapacitating 
episodes.  On physical examination, the lumbar spine showed 
normal curvature.  There was no tenderness and no deformities 
were noted.  

Flexion was to 90 degrees without pain, extension was to 25 
degrees with mild pain, left and right lateral flexion was to 
25 degrees, bilaterally, with mild pain.  Left and right 
lateral rotation was to 30 degrees with mild pain.  Active 
range of motion did not produce additional pain, fatigue, 
incoordination, weakness, or limitation of motion with 
repetitive use.  He had normal deep tendon reflexes and 
negative foot drop in the lower extremities, bilaterally.  
There was no evidence of muscle spasms or atrophy.  Motor 
skills, pinprick sensation and strength were normal in the 
lower extremities.  Straight leg raising of the right lower 
extremity was to 60 degrees and to 70 degrees in the left, 
without pain.  The examiner diagnosed degenerative changes 
and chronic low back pain.    

Laws and Regulations

Disability ratings are determined by the application of VA's 
Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. 
Part 4.  The percentage ratings contained in the Rating 
Schedule represent, as far as can be practicably determined, 
the average impairment in earning capacity resulting from 
diseases and injuries incurred or aggravated during military 
service and their residual conditions in civil occupations.  
38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

The Board will consider whether separate ratings may be 
assigned for separate periods of time based on facts found, a 
practice known as "staged ratings," whether it is an 
initial rating case or not.  Fenderson v. West, 12 Vet. 
App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 
(2007).

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.  38 C.F.R. § 4.7.

The veteran's service-connected arthritis of the cervical and 
lumbar spine are rated as degenerative arthritis under 
Diagnostic Code 5003.  38 C.F.R. § 4.71a, Diagnostic Code 
5003.  Degenerative arthritis established by X-ray findings 
is rated on the basis of limitation of motion under the 
appropriate diagnostic codes for the specific joint or joints 
involved.  

Under the General Rating Formula for Diseases and Injuries of 
the Spine, limitation of motion is covered by Diagnostic Code 
5242 (arthritis of the spine).  Under Diagnostic Code 5242, 
the criteria for a 10 percent rating based on limitation are 
forward flexion of the thoracolumbar spine greater than 60 
degrees but not greater than 85 degrees; a combined range of 
motion of the thoracolumbar spine greater than 120 degrees 
but not greater than 235 degrees; or muscle spasm, guarding, 
or localized tenderness not resulting in an abnormal gait or 
abnormal spinal contour.  The criteria for a 20 percent 
rating are 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.  

Normal forward flexion of the thoracolumbar spine is zero to 
90 degrees, extension is zero to 30 degrees, left and right 
lateral flexion are zero to 30 degrees, and left and right 
lateral rotation are zero to 30 degrees. The combined range 
of motion refers to the sum of the range of forward flexion, 
extension, left and right lateral flexion, and left and right 
rotation.  The normal combined range of motion of the 
thoracolumbar spine is 240 degrees.

Under Diagnostic Code 5242, relevant to degenerative 
arthritis of the cervical spine, the criteria for a 10 
percent rating are forward flexion of the cervical spine 
greater than 30 degrees but not greater than 40 degrees; or 
the combined range of motion of the cervical spine is greater 
than 170 degrees but not greater than 335 degrees; 
or if there is muscle spasm, guarding, or localized 
tenderness not resulting in abnormal gait or abnormal spinal 
contour.  The criteria for a 20 percent rating are forward 
flexion of the cervical spine greater than 15 degrees, but 
not greater than 30 degrees; or the combined range of motion 
of the cervical spine is not greater than 170 degrees; or if 
there is muscle spasm or guarding severe enough to result in 
an abnormal gait or abnormal spinal contour such as 
scoliosis, reversed lordosis, or abnormal kyphosis.

Normal forward flexion of the cervical spine is zero to 45 
degrees, extension is zero to 45 degrees, left and right 
lateral flexion are zero to 45 degrees, and left and right 
lateral rotation are zero to 80 degrees.  The combined range 
of motion refers to the sum of the range of forward flexion, 
extension, left and right lateral flexion, and left and right 
rotation.  The normal combined range of motion of the 
cervical spine is 340 degrees.

When rating a disability of the musculoskeletal system, 
functional loss due pain, weakened movement, and fatigability 
are factors to be considered.  38 C.F.R. §§4.40, 4.45; DeLuca 
v. Brown, 8 Vet. App. 202 (1995).  In any form of arthritis, 
painful motion is also a factor.  38 C.F.R. § 4.59.

Analysis

Under Diagnostic Code 5242 for restricted range of motion of 
the cervical spine, flexion of the cervical spine was to 40 
degrees on both VA examinations. There is no evidence that 
flexion is limited to 30 degrees or less, or that the 
combined range of motion is 170 degrees or less.  Rather, 
range of motion studies in October 2004, revealed flexion of 
the cervical spine to 40 degrees, extension to 35 degrees, 
and lateral movement to 60 degrees with mild discomfort.  The 
veteran was able to tilt the head to the right and the left 
to 45 degrees respectively, with discomfort.  The combined 
range of motion was 285 degrees.  In May 2007, forward 
flexion was to 40 degrees without pain, extension was to 35 
degrees without pain, left and right lateral flexion was to 
35 degrees, bilaterally, without pain.  Left and right 
lateral rotation was to 70 degrees without pain.  The 
combined range of motion was 285 degrees.  Further, there is 
no objective evidence on VA examination reports or treatment 
records to demonstrate muscle spasm or abnormal gait or 
abnormal spinal contour.  There is also no objective 
neurological abnormality.  

Since the criteria for 10 percent under Diagnostic Code 5242 
for limitation of motion of the cervical are shown, the Board 
assigns a separate 10 percent, but the criteria for a 20 
percent rating based on limitation of motion have not been 
met. 

Also there is no objective evidence to demonstrate that pain 
on use or during flare-ups results in additional functional 
limitation to the extent that under Diagnostic Code 5242, the 
following is shown: forward flexion of the cervical spine 
would be 30 degrees or less, or that the combined range of 
motion of the cervical spine would be 170 degrees or less, 
for a rating higher than 10 percent.  38 C.F.R. §§ 4.40, 
4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  As 
noted previously, painful motion was taken into account on 
the range of motion studies on the VA examinations in October 
2004 and May 2007.

With respect to arthritis of the lumbar spine with 
degenerative changes, the findings do not demonstrate that 
the forward flexion is 85 degrees or less, or that the 
combined range of motion is 235 degrees or less.  The VA 
examination in October 2004, recorded findings of extention 
to 30 degrees and flexion to 110 degrees, lateral movement to 
the right and the left was to 30 degrees, bilaterally.  
Rotary movement was to 65 degrees bilaterally.  The combined 
range of motion was 315 degrees. The May 2007 examination, 
revealed forward flexion to 90 degrees without pain, 
extension to 25 degrees with mild pain, and left and right 
lateral flexion to 25 degrees, bilaterally, with mild pain.  
Left and right lateral rotation was to 30 degrees with mild 
pain.  The combined range of motion was 225 degrees. There is 
also no objective neurological abnormality.  For these 
reasons, neither criteria for a 20 percent rating, namely, 
forward flexion of the thoracolumbar spine greater than 30 
degrees but not greater than 60 degrees nor a combined range 
of motion of the thoracolumbar spine not greater than 120 
degrees is shown. 

Since the criteria for 10 percent under Diagnostic Code 5242 
for limitation of motion of the lumbar spine are met, the 
Board assigns a separate 10 percent rating. 

Although the VA examiner in May 2007 diagnosed degenerative 
disc disease of the cervical and lumbar spines, service 
connection for disc disease has not been established or shown 
to be a part of the service-connected degenerative joint 
disease disabilities.  Thus, the regulation pertaining to 
intervertebral disc syndrome is not for application in this 
case.

Although the Board is precluded by regulation from assigning 
an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the 
first instance, the Board is not precluded from considering 
whether the case should be referred to the Director of VA's 
Compensation and Pension Service.  In this case, disability 
picture is not so exceptional or unusual as to render 
impractical the application of the regular schedular 
criteria.  For this reason, the Board finds no basis to refer 
this case for consideration of an extraschedular rating.

The Board finds that the preponderance of evidence is against 
a rating higher than 10 percent for each disability, and the 
benefit-of-the-doubt standard of proof does not apply.  38 
U.S.C.A. § 5107(b).


ORDER

As new and material evidence has been presented, the claim of 
service connection for bilateral hearing loss is reopened and 
to this extent only the appeal is granted.

On the merits of the claim, service connection for bilateral 
hearing loss is denied.

A rating higher than 10 percent for arthritis of the cervical 
spine with degenerative changes is denied.

A rating higher than 10 percent for arthritis of the lumbar 
spine with degenerative changes is denied.  



____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs