Citation Nr: 0810344	
Decision Date: 03/28/08    Archive Date: 04/09/08

DOCKET NO.  05-32 492	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. 
Petersburg, Florida


THE ISSUES

1.  Entitlement to an initial rating in excess of 10 percent 
disabling for a lumbosacral spine disorder with degenerative 
changes of the lumbar spine, claimed as recurrent lumbar back 
pain, S1 joint pain and degenerative joint disease (DJD).

2.  Entitlement to an initial rating in excess of 10 percent 
disabling for a cervical spine disorder with herniated 
nucleus pulposus C5-6, claimed as C5-6 radiculopathy.

3.  Entitlement to an initial compensable rating for allergic 
rhinitis and sinusitis.

4.  Entitlement to an initial compensable rating for 
bilateral hearing loss.


ATTORNEY FOR THE BOARD

C. Eckart, Counsel




INTRODUCTION

The veteran served on active duty from May 1988 to June 2004.

This case comes before the Board of Veterans' Appeals (Board) 
from a rating decisions of April 2004 and May 2004 from the 
Regional Office (RO) of the Department of Veterans Affairs 
(VA), in St. Petersburg Florida, which granted service 
connection for the enumerated disorders and assigned a 10 
percent rating for the lumbar spine disorder and 
noncompensable ratings for the remaining issues from initial 
entitlement.  

During the pendency of the appeal, the RO granted a 10 
percent rating for the cervical spine disorder from initial 
entitlement in a September 2007 decision.  As this does not 
represent the highest possible benefit, this issue remains in 
appellate status.  AB v. Brown, 6 Vet. App. 35, 38 (1993).


FINDINGS OF FACT

1.  The competent medical evidence shows the veteran's 
service-connected lumbosacral spine disorder results in 70 
degrees flexion, 25 degrees extension, 35 degrees lateral 
flexion bilaterally, and 55 degrees rotation bilaterally for 
a combined range of motion of the lumbar spine of 275 
degrees, with no evidence of muscle spasm or guarding severe 
enough to result in an abnormal gait or abnormal spinal 
contour such as scoliosis, reversed lordosis, or abnormal 
kyphosis.

2.  The veteran did not have any incapacitating episodes 
having a total duration of at least two weeks during a 12-
month period due to his lumbosacral spine disorder.

3.  The veteran's service-connected lumbosacral spine 
disorder does not presently cause neurological 
manifestations.  

4.  The competent medical evidence shows the veteran's 
service-connected cervical spine results in a range of motion 
of 50 degrees flexion, 35 degrees extension, rotation of 80 
degrees to the left, 75 degrees to the right, and lateral 
flexion of 25 degrees bilaterally with a combined range of 
motion of 290 degrees with no evidence of muscle spasm or 
guarding severe enough to result in an abnormal gait or 
abnormal spinal contour such as scoliosis, reversed lordosis, 
or abnormal kyphosis.

5.  The veteran did not have incapacitating episodes having a 
total duration of at least two weeks during a 12-month period 
due to his cervical spine disorder

6.  The veteran's service-connected cervical spine disorder 
does not presently cause neurological manifestations. 

7.  The veteran's rhinitis and sinusitis is shown to result 
in fleeting instances of allergic rhinitis problems with 
sneezing, rhinnorhea and itchy watery eyes, lasting about 30 
minutes in duration about every 2 weeks, as well as a sinus 
infection about once a year, lasting about a week and treated 
with medications, and with no evidence on current examination 
of polyps or obstruction.  

8.  The veteran's bilateral audiometric test results 
correspond to numeric designations no worse than Level I in 
the right ear and Level II in the left ear.


CONCLUSIONS OF LAW

1.  The criteria for an initial rating in excess of 10 
percent for a service-connected a lumbosacral spine disorder 
with degenerative changes of the lumbar spine, claimed as 
recurrent lumbar back pain, S1 joint pain and DJD are not 
met.  38 U.S.C.A. 
§§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 
C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic 
Codes 5237, 5243 (2007).  

2.  The criteria for an initial rating in excess of 10 
percent for a service-connected cervical spine disorder with 
herniated nucleus pulposus C5-6, claimed as C5-6 
radiculopathy are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 
5107 (West 2002 
& Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 
4.71a, Diagnostic Codes 5237, 5243 (2007).  

3.  The criteria for an initial compensable disability rating 
for allergic rhinitis and sinusitis have not been met.  38 
U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 
2007); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.97, Diagnostic Code 
6513 (2007).

4.  The criteria for a compensable rating for bilateral 
hearing loss have not been met.  38 U.S.C.A. §§ 1155, 5103, 
5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 
3.159, 4.85, 4.86, Diagnostic Code 6100 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to notify and assist

The VA has a duty to notify and assist claimants in 
substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 
5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007).  
Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative, if any, of any 
information, and any medical or lay evidence, that is 
necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 
183 (2002).  Proper notice from VA must inform the claimant 
of any information and evidence not of record (1) that is 
necessary to substantiate the claim; (2) that VA will seek to 
provide; (3) that the claimant is expected to provide; and 
(4) must ask the claimant to provide any evidence in her or 
his possession that pertains to the claim in accordance with 
38 C.F.R. § 3.159(b)(1).  This notice must be provided prior 
to an initial unfavorable decision on a claim by the agency 
of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 
F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. 
App. 112 (2004).  

In the present case, the veteran's claim on appeal was 
received in January 2004.  Prior to granting service 
connection in April 2004 and May 2004, a letter addressing 
service connection claims in general was sent in January 
2004.  

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. 
Court of Appeals for Veterans Claims (Court) held that, upon 
receipt of an application for a service-connection claim, 
38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to 
review the information and the evidence presented with the 
claim and to provide the claimant with notice of what 
information and evidence not previously provided, if any, 
will assist in substantiating, or is necessary to 
substantiate, each of the five elements of the claim, 
including notice of what is required to establish service 
connection and that a disability rating and an effective date 
for the award of benefits will be assigned if service 
connection is awarded.

Here, the veteran is challenging the initial evaluation and 
effective date assigned following the grant of service 
connection.  In Dingess, the Court held that in cases where 
service connection has been granted and an initial disability 
rating and effective date have been assigned, the typical 
service-connection claim has been more than substantiated, it 
has been proven, thereby rendering section 5103(a) notice no 
longer required because the purpose that the notice is 
intended to serve has been fulfilled.  Id. at 490-91.  Thus, 
because the notice that was provided before service 
connection was granted was legally sufficient, VA's duty to 
notify in this case has been satisfied.

After granting service connection for the issues in this 
case, the VA's duty to notify was further satisfied 
subsequent to the initial AOJ decision by way of a letter(s) 
sent to the appellant in August 2004 which addressed 
entitlement to increased disability ratings for the issues on 
appeal.  These letters provided initial notice of the 
provisions of the duty to assist as pertaining to entitlement 
to an increased rating, which included notice of the 
requirements to prevail on these types of claims, of his and 
VA's respective duties, and he was asked to provide 
information in his possession relevant to the claim.  The 
duty to assist letter notified the veteran that VA would 
obtain all relevant evidence in the custody of a federal 
department or agency.  He was advised that it was his 
responsibility to either send medical treatment records from 
his private physician regarding treatment, or to provide a 
properly executed release so that VA could request the 
records for him.  The veteran was also asked to advise VA if 
there were any other information or evidence he considered 
relevant so that VA could help by getting that evidence.  

For an increased-compensation claim, section § 5103(a) 
requires, at a minimum, that the Secretary notify the 
claimant that, to substantiate a claim, the claimant must 
provide, or ask the Secretary to obtain, medical or lay 
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.  Vazquez-Flores v. 
Peake, No. 05-0355, (U.S. Vet. App. January 30, 2008).  

Further, 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 that worsening has on the 
claimant's employment and daily life (such as a specific 
measurement or test result), the Secretary must provide at 
least general notice of that requirement to the claimant.  
Additionally, the claimant must be notified that, should an 
increase in disability be found, a disability rating will be 
determined by applying relevant Diagnostic Codes, which 
typically provide for a range in severity of a particular 
disability from noncompensable to as much as 100 percent 
(depending on the disability involved), based on the nature 
of the symptoms of the condition for which disability 
compensation is being sought, their severity and duration, 
and their impact upon employment and daily life.  As with 
proper notice for an initial disability rating and consistent 
with the statutory and regulatory history, the notice must 
also provide examples of the types of medical and lay 
evidence that the claimant may submit (or ask the Secretary 
to obtain) that are relevant to establishing entitlement to 
increased compensation-e.g., competent lay statements 
describing symptoms, medical and hospitalization records, 
medical statements, employer statements, job application 
rejections, and any other evidence showing an increase in the 
disability or exceptional circumstances relating to the 
disability.  Vazquez-Flores, slip op. at 5-6.  

In this case the veteran was sent an attachement to a January 
2008 hearing notification letter that provided the above 
described notice to the veteran that he needed to present 
evidence showing his conditions had worsened, to include 
discussion of the applicability of relevant Diagnostic Codes 
ranging from noncompensable to 100, as well as describing the 
specific examples of lay and medical evidence as set forth in 
Vasquez-Flores-- e.g., competent lay statements describing 
symptoms, information regarding any medical and 
hospitalization records the veteran had not recently told the 
VA about, employer statements, and any other evidence showing 
an increase in the disability or exceptional circumstances 
relating to the disability.  Additionally this notice also 
apprised him of how the VA determines the effective date for 
entitlement to benefits.  See Dingess, supra, which held that 
the notice requirements of 38 U.S.C.A. § 5103(a) and 
38 C.F.R. § 3.159(b) apply to all five elements of a service-
connection claim, including the degree of disability and the 
effective date of an award.  

VA must also make reasonable efforts to assist the claimant 
in obtaining evidence necessary to substantiate the claim for 
the benefit sought, unless no reasonable possibility exists 
that such assistance would aid in substantiating the claim.  
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).  Service 
medical records were previously obtained and associated with 
the claims folder.  Furthermore, VA records were obtained and 
associated with the claims folder.  Assistance shall also 
include providing a medical examination or obtaining a 
medical opinion when such an examination or opinion is 
necessary to make a decision on the claim.  38 U.S.C.A. § 
5103A; 38 C.F.R. § 3.159.  The evidence of record includes VA 
examinations including the most recent ones from March 2006 
which included review of the claims file.     

In summary, the duties imposed by 38 U.S.C.A. §§ 5103 and 
5103A have been considered and satisfied.  Through notices of 
the RO, the claimant has been notified and made aware of the 
evidence needed to substantiate his claims for higher 
disability ratings, the avenues through which he might obtain 
such evidence, and the allocation of responsibilities between 
himself and VA in obtaining such evidence.  There is no 
additional notice that should be provided, nor is there any 
indication that there is additional existing evidence to 
obtain or development required to create any additional 
evidence to be considered in connection with the claims 
decided on appeal.  Consequently, any error in the sequence 
of events or content of the notice is not shown to prejudice 
the claimant or to have any effect on the appeal.  Any such 
error is deemed harmless and does not preclude appellate 
consideration of the matter being decided, at this juncture.  
See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) 
(rejecting the argument that the Board lacks authority to 
consider harmless error).  See also ATD Corp. v. Lydall, 
Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

II.  Factual Background and analysis

Disability evaluations are determined by the application of a 
schedule of ratings that is based on the average impairment 
of earning capacity.  38 U.S.C.A. § 1155 (West 2002); 38 
C.F.R., Part 4.  Separate diagnostic codes identify the 
various disabilities.  38 C.F.R. § 4.1 requires that each 
disability be viewed in relation to its history and that 
there be emphasis upon the limitation of activity imposed by 
the disabling condition.  38 C.F.R. § 4.2 requires that 
medical reports be interpreted in light of the whole recorded 
history, and that each disability must be considered from the 
point of view of the veteran working or seeking work. 38 
C.F.R. § 4.7 provides that, where there is a question as to 
which of two disability evaluations shall be applied, the 
higher evaluation is to be assigned if the disability picture 
more nearly approximates the criteria required for that 
rating.  Otherwise, the lower rating is to be assigned.

Disability evaluations are based on functional impairment.  
See 38 C.F.R. §§ 4.40, 4.45, 4.59.  Functional impairment may 
be due to less or more movement than normal, weakened 
movement, excess fatigability, incoordination, and pain on 
movement.  See id.; see also DeLuca v. Brown, 8 Vet. App. 202 
(1995).  The provisions of 38 C.F.R. § 4.14 (avoidance of 
pyramiding) do not forbid consideration of a higher rating 
based on greater limitation of function due to pain on use, 
including during flare-ups.

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).  While the veteran's entire history is reviewed when 
assigning a disability evaluation, 38 C.F.R. § 4.1, where 
service connection 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. 
Francisco, Supra.  A recent decision of the Court has held 
that in determining the present level of a disability for any 
increased evaluation claim, the Board must consider the 
application of staged ratings.  See Hart v. Mansfield, No. 
05-2424 (U.S. Vet. App. Nov. 19, 2007).  In other words, 
where the evidence contains factual findings that demonstrate 
distinct time periods in which the service-connected 
disability exhibited diverse symptoms meeting the criteria 
for different ratings during the course of the appeal, the 
assignment of staged ratings would be necessary.  In appeals 
of the initial rating assigned following a grant of service 
connection, "staged ratings" or separate ratings for separate 
periods of time may be assigned based on the facts found 
following the initial grant of service connection.  Fenderson 
v. West, 12 Vet. App. 119 (1999).  

An evaluation of the level of disability present also 
includes consideration of the functional impairment of the 
veteran's ability to engage in ordinary activities, including 
employment. 38 C.F.R. § 4.10 (2007).

When all the evidence is assembled, VA is responsible for 
determining whether the evidence supports the claim or is in 
relative equipoise, with the appellant prevailing in either 
event, or whether a preponderance of the evidence is against 
a claim, in which case, the claim is denied.  Gilbert v. 
Derwinski, 1 Vet. App. 49, 55 (1990).

The veteran filed his claim for service connection for 
traumatic arthritis of the lumbar spine, cervical disc 
disease and bilateral hearing loss and allergic 
rhinitis/sinusitis in January 2004, while still on active 
duty.  Service connection was granted for the disorders of 
the lumbar spine and cervical spine and for hearing loss by 
the RO in April 2004 which assigned an initial 10 percent 
rating for the lumbar spine disorder, and a noncompensable 
rating for the bilateral hearing loss disorder and the 
cervical spine disorder all effective July 1, 2004, one day 
after he retired from active duty.  Service connection was 
granted for the rhinitis/sinus disorder by the RO in a May 
2004 rating, which assigned a noncompensable rating effective 
July 1, 2004.  The veteran has appealed these assigned 
ratings.  

The only available records of medical treatment for the above 
claimed conditions are service medical records from the 
veteran's nearly 30 years of service.  He is noted to have 
not alleged any additional medical treatment in his claim for 
benefits or in any additional statements.  He is noted to 
have canceled a hearing before a Veterans Law Judge at the RO 
(Travel Board hearing) scheduled for February 2008.  

The service medical records, which predate the veteran's 
entitlement to VA benefits show treatment for recurrent low 
back pain dating back to the 1970s, recurrent sinusitis 
dating back to the late 1980s, and cervical spine 
radiculopathy with history of C5-6 herniated nucleus pulposus 
in August 1993.  He is noted to have evidence of hearing loss 
shown in early 2004.  

Among the more pertinent records of recent treatment in 
service for the claimed conditions, include treatment in 
February 2003.  At that time the veteran was seen following 
complaints of having thrown his back out with immediate 
lumbar pain on the right side, but no radiation, numbness or 
weakness.  This was similar to previous episodes and worse 
with bending and standing up.  He was tender to palpation at 
the paraspinal L5 and S1 joint and had full range of motion 
and negative leg raise.  He was assessed with erector spinal 
strain likely secondary to DJD with questionable S1 joint 
dysfunction.  There was a high likelihood for recurrence.  He 
was treated in September 2003 for intermittent mild lumbar 
back pain which usually resolves after 1-3 days.  He did 
physical therapy stretches with good result.  There was mild 
tenderness in the lumbar area but no lordosis or edema.  The 
assessment was intermittent low back strain.  In January 2004 
he was seen for 1 day of right low back pain after twisting 
it at his desk.  This was a recurrent injury from years of 
physical training that now got aggravated even with minor 
activity.  There was no numbness or radiation and he was 
assessed with erector spinal strain.  There were records of 
an ear, nose, throat referral for acute worsening of left 
high frequency hearing loss and tinnitus in February 2004.  
Pure tone thresholds done in February 2004 revealed the 
following readings at 500, 1000, 2000, 3000, and 4000 Hertz 
respectively: For the right ear it was 15, 25, 0, 40 and 30 
decibels and for the left ear it was 15, 10, 15, 45 and 40 
decibels.  

The report of a February 2004 VA examination conducted prior 
to the veteran's retirement from the service revealed the 
following pertinent complaints and findings.  He believed he 
had a high frequency hearing loss.  He had lumbar pain noted 
in 1989 with pain in the middle of the low back with only 
occasional slight radiation to the left lateral thigh.  
Prolonged placement in any position may bring it on.  Lifting 
occasionally would cause it.  He was quite physically active.  
He may have a severe pain every 6 to 8 weeks for which he 
takes over the counter medication and rest for about 3 days.  
It has not interfered with normal duties.  He noted numbness 
in his right thumb in 1993 and some tingling in the forearm 
and thought he might have some decreased strength.  Symptoms 
seemed to abate with chiropractic treatment.  He also noted 
during the same time period that he had hot stabbing pain in 
the right hand during a parachute jump.  Magnetic resonance 
imaging (MRI) showed some possible nerve impingement at C5-6 
and surgery was recommended which he declined.  He has had no 
more trouble since 1993 with pain, paresthesia, weakness or 
other neurological signs in the right hand or forearm.  He 
was able to return to full duty.  He noticed no decrease in 
strength or mobility of the right hand or arm in general.  He 
had yearly sinusitis lasting 7 to 10 days and requiring 
antibiotics with congestion, purulent nasal discharge and 
pressure like pain around his nose and eyes until 1998.  
Following 1998 he no longer had these symptoms.  

Occupationally he was noted to have served 28 years with the 
Navy SEALS.  Duties included parachute jumps, scuba diving, 
demolition, small arms fire and other physical activities.  
He lost no time from work in the past 12 months.  He had no 
ongoing medical treatment.  He periodically went on sick call 
for his back pain but received no specific treatment.  X-rays 
from 2003 were said to show degenerative joint disease (DJD) 
in the low back but the report was not available.  He 
received no specific treatment but was recommended further 
stretching or strengthening exercises.  

Physical examination revealed him to be quite muscular.  He 
walked with normal posture and gait.  Head and face were 
unremarkable with the nose showing no signs of deformity or 
congestion in the pharynx.  It was normal to inspection.  
Neck showed no dilated veins, enlarged nodes or masses.  
Chest was normal and breath sounds were all normal.  
Musculoskeletal examination revealed his neck to be normal in 
appearance.  He had a normal neck range of motion with 
extension and flexion to 45 degrees and rotation to 80 
degrees bilaterally.  Thumb and forefinger opposition was 5/5 
bilaterally and sensation to monofilament touch was intact 
and all areas of the hands and fingers.  Gross strength of 
the biceps and triceps was 5/5 bilaterally.  His shoulder 
range of motion was normal bilaterally.  Regarding the back 
his curvature was normal and there was no muscle spasm or 
atrophy or abnormal curvature.  Range of motion of the back 
showed 92 degrees flexion, 28 degrees extension and 28 
degrees lateral flexion bilaterally.  Deep tendon reflexes 
were normal as was sensation in both feet.  Neurologically 
his orientation, gait, stance and coordination were normal.  
His deep tendon reflexes were 2+ in both ankles and knees and 
1+ both biceps.  Touch sensation was intact in all 
extremities. 

The diagnoses from this retirement from active duty 
examination included possible high frequency hearing loss, to 
be further evaluated; lumbar back pain for many years with 
frequent flare-ups of pain and stiffness without radicular 
signs or symptoms; history of cervical spine symptoms 
secondary to nerve root compression in 1993.  Currently he 
had full range of motion of the neck and no further radicular 
symptoms since 1993.  A copy of the MRI from 1993 was not 
available.  Also diagnosed was history of recurrent sinusitis 
in the past.  Currently he had none over the past 5 years.  
None of the above problems interfered significantly with his 
service duties.

The report of a February 2004 special audiology examination 
prior to his retirement from active duty noted a history of 
much noise exposure during service.  Tinnitus was also 
reported.  Pure tone thresholds revealed the following 
readings at 500, 1000, 2000, 3000, and 4000 Hertz 
respectively: For the right ear it was 20, 20, 20, 45 and 35 
decibels and for the left ear it was 15, 20, 15, 50 and 45 
decibels.  The average decibel levels recorded were 30 
decibels for the right ear and 33 decibels for the left ear.  
Speech recognition under the Maryland CNC was 96 percent for 
the right ear and 96 percent for the left ear.  The examiner 
opined that puretone thresholds from 500 to 4000 Hertz 
indicate normal to moderate sensorineural hearing loss 
bilaterally.  

Subsequent service medical records include the following 2 
records, copies of which were submitted by the veteran in 
support of his claim.  These include a March 2004 record 
showing complaints of low back pain after lifting and 
straining his muscle on the right with low back pain.  He 
denied any loss of bowel or bladder control, and denied 
numbness or tingling.  His pain was much better than 6 days 
earlier when he injured it.  His gait was normal and straight 
leg raise was negative, strength was 5/5 and deep tendon 
reflexes were 2+ bilaterally.  He was tender to palpation of 
the right lateral low back/S1 region.  The assessment was low 
back pain and treatment included Flexeril, Naproxin and ice.  
An April 2004 treatment record showed treatment for 4 days of 
frontal sinus pain and pressure with sneezing and nasal 
congestion.  He also had itchy and watery eyes.  He denied 
fever, muscle ache or sore throat.  He also reported dry 
cough.  Symptoms improved with Claritin.  He also endorsed 2 
weeks of low back pain after straining to lift a heavy item, 
but had been previously doing well with core strength 
training.  His pain had radiated in "twinges" down the 
right thigh and testicle with certain movements.  There was 
no numbness or weakness.  Pain was lumbar only.  Right side 
was worse than left, constant and relieved by lying on his 
right side.  Objective finding he was in mild discomfort with 
his sinus tender to palpation, throat clear and conjunctiva 
normal.  He had a left polyp and mild edema of the nares.  He 
had positive findings on toe touch, S1 was tender to 
palpation and the left was greater than right of mild lumbar 
tender to palpation.  There was no spasm.  The assessment was 
allergic rhinitis and sinus congestion rule out sinusitis and 
S1 desiccation with spinal trauma.  

The report of a May 2007 VA examination noted the veteran's 
complaints of hearing loss that began in service and has 
continued to deteriorate over the years since separation.  He 
denied any significant history of ear infections or vertigo.  
He reported loud noise exposure in service although he wore 
hearing protection.  He reported high pitched tinnitus 
beginning in service.  Pure tone thresholds revealed the 
following readings at 500, 1000, 2000, 3000, and 4000 Hertz 
respectively: For the right ear it was 25, 35, 20, 45 and 45 
decibels and for the left ear it was 20, 25, 20, 55 and 55 
decibels.  The average decibel levels recorded were 36 
decibels for the right ear and 39 decibels for the left ear.  
Speech recognition under the Maryland CNC was 96 percent for 
the right ear and 88 percent for the left ear.  The diagnosis 
was that puretone thresholds from 500 to 4000 hertz currently 
indicate normal sloping to moderate sensorineural hearing 
loss in the right ear and normal sloping to moderately severe 
sensorineural hearing loss in the left ear.  

The report of a May 2007 VA examination to address the 
service-connected lumbar spine and cervical spine 
disabilities, as well as the rhinitis and sinusitis reported 
the following.  He was noted to have not had any prescribed 
bedrest or incapacitating episodes over the past 12 months.  
He was independent in his activities of daily living and had 
no impairment to his current occupation.  His current 
medications included 800 milligrams of Motrin once per week 
and 10 milligrams of Flexeril once per year when his back 
flares up.  It did help and he denied any side effects from 
either medication.  He did not take any medications for 
allergies but only when he had a sinus infection.  In regards 
to problems related to his sinus and allergic rhinitis 
problems he stated that he will get problems with itchy, 
watery eyes and sneezing and rhinorrhea about once every 2 
weeks.  This lasted about only 30 minutes and then was gone.  
He did not treat these symptoms with any particular 
medications.  Once a year he would get a sinus infection 
where he had purulent drainage, difficulty breathing, facial 
pain and headaches.  He would have to take antibiotics and 
usually took a Zpack until it was gone, as well as Sudafed 
for a week and Entex also for a week.  This would clear up 
the sinus infection and he would have improvement.  He has 
had this problem since he was in the military.  Currently he 
was asymptomatic.  

In regards to his cervical spine problem he discussed his 
history of problems with this beginning in 1996 in service 
when he had radicular type of pain and symptoms of numbness 
and tingling radiating down the right arm.  Currently he had 
intermittent dull pain only when he turned his head from side 
to side to the extremes.  When he turned his head to the 
right it seemed somewhat worse than turning to the left.  The 
pain was rated a 3/10 and he had no flareups of his neck.  It 
was obviously aggravated by turning and alleviated by 
repositioning his head in a relatively normal position.   He 
denied any problems with sexual dysfunction, bowel or bladder 
dysfunction or saddle anesthesia.  He had no difficulty 
walking and has no stumbling.  He had no further radicular 
pain and has not had any for years.  He denied any weakness 
or numbness or tingling in his upper or lower extremities.  
He had no physical therapy or injections.  He did not treat 
his neck with any particular medications nor did he use any 
ice, heat, ointments or any other modalities.  He did not use 
a cervical collar.  

Regarding his lumbar spine he was diagnosed with degenerative 
changes in the service and had repeated back problems over 
the years.  The most significant injury was from a parachute 
jump with a hard landing.  He did not have any fractures, but 
he has had repeated problems with his back over the years 
currently getting worse.  Currently he had constant dull 
aching in his lower back that was rated as a 2/10, aggravated 
by bending, lifting or twisting.  Stretching seemed to help 
relieve the discomfort. About once a year his back would "go 
out" for about 2 days and he would have sharp pain rated at 
about 9/10.  He had no radicular pain, weakness, numbness, 
tingling or bowel or bladder problems.  There was no 
increased pain with coughing or sneezing.  He had no 
injections of his back and had therapy for the past 2 years 
for his back.  He took medications for his back but did not 
use a brace, cane, heat, ice or any other modalities or 
assistive device.  

Physical examination revealed his head to be normal with no 
tenderness over the maxillary or frontal sinus to percussion 
or palpation.  The nares were open and no obstruction was 
noted.  His turbinates were normal.  His ears were normal on 
examination and his pharynx was clear.  Examination of his 
neck revealed it to be supple, with no lymphadenopathy or 
thyomegaly noted.  There was no tenderness to palpation over 
the cervical or lumbar regions.  Range of motion of the 
cervical spine was done on 3 different occasions and did not 
change.  The cervical spine range of motion was 50 degrees 
flexion, 35 degrees extension, rotation was 80 degrees to the 
left, 75 degrees to the right, and lateral flexion was 25 
degrees bilaterally.  There was pain on all movements.  The 
lumbar spine revealed that the range of motion did not change 
on repeated testing.  He had 70 degrees flexion, 25 degrees 
extension, 35 degrees lateral flexion bilaterally, and 55 
degrees rotation bilaterally.  There was pain on flexion and 
extension but none on lateral flexion or rotation.  Straight 
leg raise was negative bilaterally.  Neurological examination 
revealed 5/5 muscle strength in all muscle groups of the 
upper and lower extremities.  Deep tendon reflexes were trace 
in the knees and ankles and equal bilaterally.  Light touch 
and pinpricks was normal throughout the upper and lower 
extremities.  No abnormalities were noted.  His gait and 
posture were normal.  There were no abnormalities of his gait 
and posture noted.  Additional limitations due to repetitive 
use or flareup could not be determined with resorting to mere 
speculation.  There was no discomfort or difficulty with 
range of motion.  There was also no effusion, erythema, 
tenderness, palpable deformities or instability found except 
as noted.  

X-rays of the sinuses were normal.  X-rays of the cervical 
spine showed some degenerative disc disease (DDD) and 
sponyldosis at C5-6 and facet hypertrophy at C3 through C5.  
X-rays of the lumbar spine revealed mild narrowing of the 
disc space at L3-4 and moderate narrowing of L4-5 and L5-S1.  
The diagnoses included herniated disc and DDD, C5-6 with 
objective residuals and underlying DJD C3 through C5.  Also 
diagnosed was DDD, lumbar spine with objective residuals, 
recurrent allergic rhinitis, currently asymptomatic and 
recurrent sinusitis currently asymptomatic.  

A.  Analysis Lumbar and Cervical Spine

Traumatic arthritis established by X-ray findings is to be 
evaluated as degenerative arthritis.  38 C.F.R. § 4.71a, 
Diagnostic Code 5010.  Degenerative arthritis established by 
X-ray findings will be evaluated on the basis of limitation 
of motion of the specific joint or joints involved.  
Diagnostic Code 5003.  Diagnostic Code 5003 notes that in the 
absence of limitation of motion, rate as below: 20 percent 
with X-ray evidence of involvement of two or more major 
joints or two or more minor joint groups, with occasional 
incapacitating exacerbations; and 10 percent with X-ray 
evidence of involvement of two or more major joints or two or 
more minor joint groups.  Note (1) under Diagnostic Code 5003 
states that the 20 percent and 10 percent ratings based on X- 
ray findings, above, will not be combined with ratings based 
on limitation of motion.

Intervertebral disc syndrome should be evaluated 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 evaluation when all disabilities are 
combined under § 4.25.  Lumbar or cervical strain is 
evaluated under the General Rating Formula.

Under the General Rating Formula, forward flexion of the 
thoracolumbar spine greater than 60 degrees but not greater 
than 85 degrees; or, forward flexion of the cervical spine 
greater than 30 degrees but not greater than 40 degrees; or 
combined range of motion of the thoracolumbar spine greater 
than 120 degrees but not greater than 235 degrees; or, 
combined range of motion of the cervical spine greater than 
170 degrees but not greater than 335 degrees; or, muscle 
spasm, guarding, or localized tenderness not resulting in 
abnormal gait or abnormal spinal contour; or, vertebral body 
fracture with loss of 50 percent or more of height warrants a 
10 percent disability rating.  Forward flexion of the 
thoracolumbar spine greater than 30 degrees but not greater 
than 60 degrees; or, forward flexion of the cervical spine 
greater than 15 degrees but not greater than 30 degrees; or, 
the combined range of motion of the thoracolumbar spine not 
greater than 120 degrees; or, the combined range of motion of 
the cervical spine not greater than 170 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 warrants a 20 percent 
disability rating.  Forward flexion of the cervical spine 15 
degrees or less; or favorable ankylosis of the entire 
cervical spine warrants a 30 percent disability rating.  
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 warrants a 40 percent disability rating.  Unfavorable 
ankylosis of the entire thoracolumbar spine warrants a 50 
percent disability rating.  Unfavorable ankylosis of the 
entire spine warrants a 100 percent disability rating. 38 
C.F.R. § 4.71a, Diagnostic Codes 5243, 5237 (2007)).  Any 
associated objective abnormalities such as bowel or bladder 
impairment are to be rated separately under an appropriate 
Diagnostic Code.  See Note (1) of General Rating Formula.  

Under the Formula for rating Intervertebral Disc Syndrome 
based on Incapacitating Episodes, incapacitating episodes 
having a total duration of at least 1 week, but less than 2 
weeks during the past 12 months warrant a 10 percent 
disability evaluation..  Incapacitating episodes having a 
total duration of at least two weeks but less than four weeks 
during the past 12 months warrant a 20 percent disability 
evaluation.  Incapacitating episodes having a total duration 
of at least four weeks but less than six weeks during the 
past 12 months warrant a 40 percent disability evaluation.  
Incapacitating episodes having a total duration of at least 
six weeks during the past 12 months warrant a 60 percent 
evaluation.  38 C.F.R. § 4.71a, Diagnostic Code 5243 (2007).

Note (1):  For purposes of evaluations under 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. "Chronic orthopedic and neurologic manifestations" 
means orthopedic and neurologic signs and symptoms resulting 
from intervertebral disc syndrome that are present 
constantly, or nearly so.  Note (2):  If intervertebral disc 
syndrome is present in more than one spinal segment, provided 
that the effects in each spinal segment are clearly distinct, 
evaluate each segment on the basis of chronic orthopedic and 
neurologic manifestations or incapacitating episodes, 
whichever method results in a higher evaluation for that 
segment.  

Based on a review of the evidence, the Board finds that the 
preponderance of the evidence is against a rating in excess 
of 10 percent disabling for the lumbar spine disorder and in 
excess of 10 percent disabling for the cervical spine 
disorder, both from initial entitlement.  The evidence fails 
to reflect that his ranges of motion for the lumbar spine or 
cervical spine are more severe than the current 10 percent 
rating in effect for each.  His May 2007 VA examination 
reflects that the combined range of motion for the cervical 
spine which is 290 degrees falls squarely within the 10 
percent range, with the combined range of motion of the 
lumbar spine of 275 degrees falling within the noncompensable 
range.  His lumbar and cervical forward flexion of 70 degrees 
and 50 degrees respectively are both in the noncompensable 
range under the General Formula.  This May 2007 VA 
examination report provides the only post-service measurement 
of his ranges of motion.  As there is no evidence of 
restricted cervical motion between 15 and 30 degrees flexion 
or combined range of cervical motion less than 170 degrees, 
nor is there evidence of restricted lumbar flexion between 30 
and 60 degrees or a combined range of lumbar motion no 
greater then 120 degrees, a 20 percent rating is not 
indicated under the General Formula on the basis of 
restricted motion for either the cervical or lumbar spine.  
The ranges of motion documented in the service medical 
records and examinations conducted while on active duty 
likewise fail to suggest a rating higher than 10 percent is 
indicated for either the cervical or lumbar spine disorders.  
See Note 2 to 38 C.F.R. § 4.71a, General Rating Formula for 
Diseases and Injuries of the Spine.   

Likewise there are no findings on the May 2007 VA examination 
suggestive of any current radicular pain, weakness, numbness, 
tingling or bowel problems attributable to either his 
cervical spine or lumbar spine disorder.  Although he was 
noted to have some radicular problems from his cervical spine 
affecting his right arm shown in service, according to the 
May 2007, this has not occurred in years and there were no 
such symptoms currently shown.  There is also no indication 
that his cervical or lumbar spine conditions cause muscle 
spasm or guarding severe enough to result in an abnormal gait 
or abnormal spinal contour such as scoliosis, reversed 
lordosis, or abnormal kyphosis as no such findings were shown 
on the May 2007 examination.  Thus, he is not shown to 
warrant more than a 10 percent rating each for either his 
cervical or lumbar spine disorders under the General Rating 
Formula.  

As far as whether he is entitled to ratings in excess of 10 
percent each for the cervical and lumbar spine disorders, the 
May 2007 VA examination reflects that the veteran has not had 
any prescribed bedrest or incapacitating episodes for either 
his cervical or lumbar spine conditions over the past 12 
months.  At worst he is said to have his back "go out" once 
a year for approximately 2 days.  There were no such episodes 
reported with his neck.  The evidence clearly fails to show 
him to meet a 20 percent criteria for either his cervical or 
lumbar spine conditions based on incapacitating episodes.  

Thus, the preponderance of the evidence is against an initial 
rating in excess of 10 percent for the cervical spine 
disorder and in excess of 10 percent disabling for the lumbar 
spine disorder.


B.  Rhinitis/Sinusitis

According to Diagnostic Code 6522, a 10 percent evaluation is 
assigned for allergic or vasomotor rhinitis without polyps 
but with greater than 50 percent obstruction of nasal passage 
on both sides or complete obstruction on one side; a 30 
percent evaluation is assigned when there are polyps.  38 
C.F.R. § 4.97, Diagnostic Code 6522 (2007).

According to Diagnostic Code 6513, a 10 percent rating is 
assigned for chronic sinusitis manifested by one or two 
incapacitating episodes per year of sinusitis requiring 
prolonged (lasting four to six weeks) antibiotic treatment, 
or; three to six non-incapacitating episodes per year of 
sinusitis characterized by headaches, pain, and purulent 
discharge or crusting.  A 30 percent rating is warranted for 
three or more incapacitating episodes per year of sinusitis 
requiring prolonged (lasting four to six weeks) antibiotic 
treatment, or; more than six non-incapacitating episodes per 
year of sinusitis characterized by headaches, pain, and 
purulent discharge or crusting.  A 50 percent rating is 
warranted following radical surgery with chronic 
osteomyelitis or; near constant sinusitis characterized by 
headaches, pain, and tenderness of the affected sinus, and 
purulent discharge or crusting after repeated surgeries.  An 
incapacitating episode means one that requires bed rest and 
treatment by a physician. 38 C.F.R. § 4.97, Diagnostic Code 
6513 (2007).

Based on a review of the evidence, the Board finds that the 
preponderance of the evidence is against a compensable rating 
for the veteran's sinusitis/rhinitis disorder.  Although the 
service medical records reflect occasional episodes of 
treatment for sinus infection, the current May 2007 VA 
examination reveals him to only have fleeting instances of 
allergic rhinitis problems with sneezing, rhinnorhea and 
itchy watery eyes, lasting about 30 minutes in duration about 
every 2 weeks.  He also only reported getting a sinus 
infection about once a year, lasting about a week and treated 
with medications.  By the veteran's own history, such 
symptoms do not resemble chronic sinusitis manifested by one 
or two incapacitating episodes per year of sinusitis 
requiring prolonged (lasting four to six weeks) antibiotic 
treatment, or; three to six non-incapacitating episodes per 
year of sinusitis characterized by headaches, pain, and 
purulent discharge or crusting.  Nor is the veteran shown to 
have allergic or vasomotor rhinitis without polyps but with 
greater than 50 percent obstruction; in fact the physical 
examination of his nose and sinuses revealed normal findings 
with no sinus tenderness to palpation, with nares fully open 
with no obstruction noted.  Compensable ratings are not 
warranted under either Diagnostic Code 6522 or 6513. 

Thus, the preponderance of the evidence is against a 
compensable rating for the allergic rhinitis/sinusitis 
disability.

C.  Hearing Loss Disorder 

As noted earlier, the veteran contends that his hearing loss 
warrants a compensable rating.  His service-connected 
bilateral hearing loss is currently evaluated at a 
noncompensable disability rating, under 38 C.F.R. § 4.85, 
Diagnostic Code 6100 (2007).  A rating for hearing loss is 
determined by a mechanical application of the VA Schedule for 
Rating Disabilities (Rating Schedule) to the numeric 
designations assigned based on audiometric test results.  
Lendenmann v. Principi, 3 Vet. App. 345 (1992).  To evaluate 
the degree of disability from defective hearing, the Rating 
Schedule establishes 11 auditory acuity levels from Level I 
for essentially normal acuity through Level XI for profound 
deafness.  These are assigned based on a combination of the 
percent of speech discrimination (Maryland CNC) and the 
puretone threshold average, as contained in a series of 
tables within the regulations.  The puretone threshold 
average is the sum of the puretone thresholds at 1000, 2000, 
3000, and 4000 Hertz, divided by four.  38 C.F.R. § 
4.85(2007).  These averages are entered into a table of the 
Rating Schedule to determine the auditory acuity level of 
each ear, and these auditory acuity levels are entered into 
another table of the Rating Schedule to determine the 
percentage disability rating.  Id.

The criteria for evaluating exceptional patterns of hearing 
loss are addressed in 38 C.F.R. § 4.86 (2007).  These 
patterns are met when each pure tone threshold at 1000, 2000, 
3000, and 4000 Hertz is 55 decibels or more, or when the pure 
tone threshold is 30 decibels or less at 1000 Hertz, and 70 
decibels or more at 2000 Hertz.  The veteran is not shown by 
the audiological findings described above to have exceptional 
patterns of hearing loss.  

A review of the evidence reflects that a compensable rating 
is not warranted for the veteran's bilateral hearing loss 
disability.  The service medical records from 2004 reveal the 
hearing loss was shown to be at Level I for the right ear and 
Level I for the left ear, with the most recent evidence in 
May 2007 showing the hearing loss to be at a Level I on the 
right and Level II on the left.  Such levels are 
noncompensable under Diagnostic Code 6100.

The preponderance of the evidence is against a compensable 
rating for bilateral hearing loss disability.

III. Extraschedular Consideration

Under 38 C.F.R § 3.321(b)(1), in exceptional cases where 
schedular evaluations are found to be inadequate, 
consideration of an extra-schedular evaluation commensurate 
with the average earning capacity impairment due exclusively 
to the service-connected disability or disabilities is made.

The governing norm in an exceptional case is a finding that 
the case presents such an exceptional or unusual disability 
picture with such related factors as marked interference with 
employment or frequent periods of hospitalization as to 
render impractical the application of the regular schedular 
standards.  See 38 C.F.R 
§ 3.321(b)(1) (2007).  In this case, the evidence fails to 
show the veteran to be unemployable or to have had frequent 
hospitalizations due to either his service-connected cervical 
or lumbar spine disorders, his rhinitis/sinusitis disorder 
and for hearing loss.





ORDER

An initial rating in excess of 10 percent disabling for a 
lumbosacral spine disorder with degenerative changes of the 
lumbar spine, claimed as recurrent lumbar back pain, S1 joint 
pain and DJD is denied.

An initial rating in excess of 10 percent disabling for a 
cervical spine disorder with herniated nucleus pulposus C5-6, 
claimed as C5-6 radiculopathy is denied.

An initial compensable rating for bilateral hearing loss is 
denied.

An initial compensable rating for allergic rhinitis and 
sinusitis is denied.



____________________________________________
A. BRYANT
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs