Citation Nr: 1317244	
Decision Date: 05/28/13    Archive Date: 06/06/13

DOCKET NO.  08-31 551	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
Montgomery, Alabama


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for chronic bronchitis.  

2.  Entitlement to service connection for chronic bronchitis.  

3.  Entitlement to a rating in excess of 10 percent for degenerative arthritis of the lumbar spine, prior to January 11, 2012.  

4.  Entitlement to a rating in excess of 40 percent for degenerative arthritis of the lumbar spine, effective January 11, 2012.  

5.  Entitlement to a compensable rating for a bilateral hearing loss disability, prior to January 9, 2012.  

6.  Entitlement to a rating in excess of 10 percent for a bilateral hearing loss disability, effective January 9, 2012.  

7.  Entitlement to a total rating due to individual unemployability (TDIU) caused by service-connected disabilities.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Harold A. Beach, Counsel


INTRODUCTION

The Veteran had service in the Army National Guard in the late 1950's, and served on active duty from January 1962 to December 1983.

In October 2002, the RO denied the Veteran's claim of entitlement to service connection for chronic bronchitis, claimed as emphysema.  The Veteran was notified of that decision, as well as his appellate rights; however, a notice of disagreement was not received with which to initiate an appeal.  Therefore, that decision became final under the law and regulations then in effect.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2002).  

In April 2006, the Veteran requested that his claim of entitlement to service connection for bronchitis be reopened.  He also claimed entitlement to a rating in excess of 10 percent for his service-connected degenerative disease of the lumbosacral spine, as well as a compensable rating for his service-connected bilateral hearing loss disability.  In October 2006, RO denied those claims.  With respect to the claim for service connection for chronic bronchitis, the RO found that he had not submitted new and material evidence with which to reopen his claim.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.  With respect to the increased rating claims, the RO found that the Veteran did not meet the criteria for higher disability evaluations.  The Veteran disagreed with those decisions, and this appeal ensued.  

In a March 2012 rating action, the RO raised the Veteran's rating from 10 percent to 40 percent for degenerative disease of the lumbosacral spine.  The RO also raised the Veteran's rating from noncompensable to 10 percent for his service-connected hearing loss disability.  However, those actions did not represent a full grant of benefits sought on appeal; and, therefore, the case was sent to the Board of Veterans' Appeals (Board) for further appellate consideration.  

After reviewing the record, the Board finds that additional development is warranted with respect to the issue of entitlement to service connection for chronic bronchitis.  The Board also finds that there is an inferred issue of entitlement to a TDIU.  Those issues are addressed in the REMAND portion of the decision below.  


FINDINGS OF FACT

1.  In an unappealed rating decision, dated in October 2002, the RO denied the Veteran's claim of entitlement to service connection for chronic bronchitis, claimed as emphysema.  

2.  Evidence associated with the record since the RO's October 2002 decision is neither cumulative or redundant and, by itself or in connection with evidence previously assembled, relates to an unestablished fact or raises a reasonable possibility of substantiating the claim of entitlement to service connection for chronic bronchitis. 

3.  Prior to January 11, 2012, the Veteran's degenerative disease of the lumbar spine was manifested primarily by manifested primarily by complaints of pain and fatigue, flexion to 70 degrees, a combined range of motion of 215 degrees, and his reports of totally incapacitating flare-ups which lasted about 45 minutes.  

4.  Since January 11, 2012, the Veteran's degenerative disease of the lumbar spine has been manifested primarily by complaints of pain and fatigue, flexion to 30 degrees, and reports of totally incapacitating flare-ups which lasted about 45 minutes.  

5.  In August 2006, VA audiometric testing revealed Level II hearing acuity in the , the Veteran's right ear and Level IV hearing acuity in his left ear.  

6.  In October 2008, VA audiometric testing revealed Level III hearing acuity in the Veteran's right ear and Level I hearing acuity in his left ear.  

7.  Since January 9, 2012, the Veteran's bilateral hearing loss disability has been manifested primarily by Level V hearing acuity in his right ear and Level III hearing acuity in his left ear.  


CONCLUSIONS OF LAW

1.  The RO's October 2002 rating decision, which denied the Veteran's claim of entitlement to service connection for chronic bronchitis, is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2002).

2.  New and material evidence has been submitted to reopen the Veteran's claim of entitlement to service connection for chronic bronchitis.  38 U.S.C.A. § 5108 (West 2002 and Supp. 2012); 38 C.F.R. § 3.156 (2012).

3.  Prior to January 11, 2012, the criteria for a rating in excess of 10 percent were not met with respect to the service-connected degenerative disease of the lumbar spine.  38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5242 (2012).  

4.  Since January 11, 2012, the criteria for a rating in excess of 40 percent have not been met with respect to the service-connected degenerative disease of the lumbar spine.  38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5242 (2012).  

5.  Prior to January 9, 2012, the criteria for a rating in excess of 10 percent were not met for the service-connected bilateral hearing loss disability.  38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.85, Diagnostic Code 6100, 4.86 (2012).  

6.  Since January 9, 2012, the criteria for a rating in excess of 10 percent have not been met for the service-connected bilateral hearing loss disability.  38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.85, Diagnostic Code 6100, 4.86 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duty to Notify and Assist

Prior to consideration of the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory duty to assist him in the development of the following issues:  Whether new and material evidence has been received to reopen a claim of entitlement to service connection chronic bronchitis; entitlement to increased ratings for degenerative disease of the lumbosacral spine; and entitlement to an increased rating for a bilateral hearing loss disability.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.  In this case, the Board finds that VA has met that duty.

As noted above, this is not the Veteran's first claim entitlement to service connection for chronic bronchitis.  That claim was initially denied in the October 2002 rating action which ultimately became final.  In April 2006, the Veteran filed an application to reopen his claim of entitlement to service connection for chronic bronchitis, as well as for increased ratings for his service-connected lumbosacral spine disorder and for his bilateral hearing loss disability.  After reviewing the record, the Board finds no issue as to providing an appropriate application form or completeness of the application. 

In July 2006 and September 2007, VA notified the Veteran of the information and evidence necessary to substantiate and complete his claims, including the evidence to be provided by him and notice of the evidence VA would attempt to obtain.  VA informed him of the criteria for service connection and set forth the criteria, generally, for rating service-connected disabilities and for assigning effective dates, should service connection be granted.  VA also informed the Veteran that in order to establish an increased rating for his service-connected disability, the evidence had to show that such disability had worsened and the manner in which such worsening had affected his employment and daily life.  38 U.S.C.A. § 5103(a).  

With respect to his application to reopen a claim of entitlement to service connection for chronic bronchitis, VA informed the Veteran of the bases for the prior denials and advised him of the evidence necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial.  Kent v. Nicholson, 20 Vet. App. 1 (2006).  VA also informed him of the evidence necessary to support the underlying service connection claim.  

Following the notice to the Veteran, VA fulfilled its duty to assist him in obtaining identified and available evidence necessary to substantiate his claims.  VA  obtained or ensured the presence of the following relevant evidence:  the Veteran's service treatment and personnel records; records reflecting his treatment at a military medical facility from December 1989 through July 1996; records reflecting his treatment by L. H. W., M.D. from November 1995 through August 2006; records reflecting the Veteran's VA treatment or evaluations from February 2002 through December 2011; records reflecting his treatment by B. H. A., D.O., from May 2004 through December 2006; and records reflecting his treatment at the Nexus Pain Clinic from February to December 2007; and an October 2007 statement from the Veteran's wife. 

In February 1984, September 2002, August 2006, and January 2012, VA examined the Veteran, in part, to determine the nature and etiology of any bronchitis found to be present, as well as the level of impairment attributable to his service-connected degenerative disease of the lumbosacral spine and hearing loss disability.  Generally, the VA examination reports, including those dated in January 2012, show the examiners reviewed the Veteran's medical history, interviewed and examined the Veteran, documented his medical conditions, and rendered diagnoses and opinions consistent with the remainder of the evidence of record.  Therefore, the Board concludes that the VA examinations are adequate for evaluation purposes.  See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).

Finally, the Board notes that in January 2013, the Veteran was scheduled to have a video conference with an Acting Veterans Law Judge.  However, the Veteran did not report for that conference and did not provide a good reason for doing so.  Moreover, he did not request that the video conference be rescheduled.  Therefore, the Board will proceed as if the Veteran no longer desires a video conference.  

In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of his appeal with respect to the issues of whether new and material evidence has been received to reopen a claim of entitlement to service connection chronic bronchitis; entitlement to increased ratings for degenerative disease of the lumbosacral spine; and entitlement to an increased rating for a bilateral hearing loss disability.  He has not identified any outstanding evidence which could support any of his claims; and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication.  Accordingly, the Board will proceed to consider the aforementioned issues.

Analysis

The Service Connection Claim

The Veteran contends that his chronic bronchitis was first manifested in service and that it has been chronic since that time.  Therefore, he maintains that service connection is warranted.  At the very least, he contends that he has presented new and material evidence since the RO denied his claim in October 2002.  Therefore, he maintains that the claim should be reopened.  After reviewing the record, the Board agrees that the Veteran has presented new and material evidence to support the claim.  Accordingly, the claim is reopened; and to that extent, the appeal is granted.

Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.  38 U.S.C.A. §§ 1110; 1131; 38 C.F.R. § 3.303.  Generally, the evidence must show (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  See Cuevas v. Principi, 3 Vet. App. 542 (1992). 

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.  When the disease identity is established, there is no requirement of evidentiary showing of continuity.  38 C.F.R. § 3.303(b). 

Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) 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.  Id. 

The foregoing law and regulations notwithstanding, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

In October 2002, when the RO initially denied the Veteran's claim of service connection for chronic bronchitis, the evidence on file consisted of the Veteran's service treatment records and reports of VA examinations performed in February 1984 and September 2002.  Although the Veteran was treated for bronchitis in service in September and October 1979 and June 1980 and the report of the September 2002 VA examination revealed a diagnosis of chronic bronchitis, there was no competent evidence of a nexus between the inservice bronchitis and that diagnosed more than 20 years later.  Therefore, the RO found that the Veteran did not meet the criteria for service connection.  Accordingly, the RO denied the claim in the October 2002 decision which ultimately became final. 

Generally, a claim which has been denied by the RO may not thereafter be reopened and allowed, and a claim based upon the same factual basis may not be considered.  38 U.S.C.A. § 7105.  The exception to this rule is 38 U.S.C.A. § 5108 which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA shall reopen the claim and review the former disposition of the claim.

New evidence means existing evidence not previously submitted to VA decisionmakers.  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. 

If new and material evidence is presented, the Board may then proceed to evaluate the merits of the claim but only after insuring that the duty to assist the veteran in the development of his claim has been fulfilled.  See Elkins v. West, 12 Vet. App. 209 (1999).

Evidence added to the record since the RO's October 2002 decision includes records from a military medical facility showing the Veteran's December 1989 treatment for pneumonia, manifested by shortness of breath, a cough, and chest tightness.  Additional records dated in September and October 1991 and December 1993 confirm the presence of chronic bronchitis.  Such evidence is new in the sense that it has not previously been before the VA.  It is also material in that it shows the presence of the Veteran's post-service bronchitis 11 years earlier than previously established.  When viewed in light of the Veteran's contentions, such evidence tends to fill the deficits in the evidence which existed at the time of the prior denial.  The additional evidence is neither cumulative nor redundant of the evidence of record in October 2002, and, when considered with the evidence previously of record, raises a reasonable possibility of substantiating the claim of entitlement to service connection for chronic bronchitis.  Therefore, it is sufficient to reopen the claim; and to that extent, the appeal is granted.

The Increased Rating Claims

The Veteran contends that the current ratings for his service-connected degenerative disease of the lumbosacral spine and a hearing loss disability do not adequately reflect the level of impairment caused by those disorders.  Therefore, he maintains that increased ratings are warranted.  However, after carefully considering the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against that claim.  Accordingly, the appeal will be denied.  

Disability evaluations are determined by comparing the manifestations of a particular disability with the criteria set forth in the Diagnostic Codes of the Schedule for Rating Disabilities.  38 U.S.C.A. § 1155, 38 C.F.R. Part 4 (2012).  The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity (in civilian occupations) resulting from service-connected disability.  38 C.F.R. § 4.1.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7. 

In accordance with 38 C.F.R. §§ 4.1 and 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability.  Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present (current rating period) level of disability is of primary concern.  Although the recorded history of a disability is for consideration in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55 (1994).  However, a veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  Therefore, the following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 

The Lumbosacral Spine

The Veteran's low back disability is rated as degenerative arthritis under 38 C.F.R. § 4.71, Diagnostic Code 5242.  The rating criteria are set forth in a following general rating formula:

General Rating Formula for Diseases and Injuries of the Spine

The noted ratings may be assigned with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.

A 10 percent rating is warranted for degenerative arthritis of the lumbosacral spine, when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, when there is a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, when there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, a vertebral body fracture with loss of 50 percent or more of the height.  

A 20 percent rating is warranted for degenerative arthritis of the lumbosacral spine, when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, when the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, when there is muscle spasm or guarding severe enough to result in an abnormal gait; or when there is an abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis

A 40 percent rating is warranted for degenerative arthritis of the lumbosacral spine, when forward flexion of the thoracolumbar spine is accomplished to 30 degrees or less; or, when there is favorable ankylosis of the entire thoracolumbar spine.

A 50 percent rating is warranted degenerative arthritis of the lumbosacral spine, when there is unfavorable ankylosis of the entire thoracolumbar spine.

Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, are to be evaluated under an appropriate Diagnostic Code.  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1.  

For VA compensation purposes, 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.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 2.  

In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2).  Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted.  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 3.  

For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 5.  

In determining the adequacy of assigned disability ratings, consideration must be given to factors affecting functional loss.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  Such factors include a lack of normal endurance and functional loss due to pain and pain on use, specifically limitation of motion due to pain on use including that experienced during flare ups.  38 C.F.R. § 4.40.  Consideration must also be given to weakened movement, excess fatigability, and incoordination, as well as the effects of the disability on the veteran's ordinary activity.  38 C.F.R. § 4.10, 4.45. 

A review of the evidence, such as the October 2007 statement from the Veteran's wife; the treatment records from L. H. W., M.D. and B. H. A., D.O.; and the report of the Veteran's August 2006 VA examination, show that prior to January 11, 2012, the Veteran's service-connected low back disorder was manifested primarily by complaints of pain and fatigue, limitation of motion, and reports of flare-ups which lasted about 45 minutes and were totally incapacitating.  While the records from Dr. A. show that medication helped keep the pain at a moderate level, and the VA examination report confirmed the presence of no more than moderate tenderness to palpation, the Veteran reports that he did have medial branch blocks, and evidence from the Nexus Pain Center shows that in March 2007, the Veteran underwent injection therapy.  

During the VA examination, there was no evidence of ankylosis, and the Veteran demonstrated the following range of lumbar spine motion:  flexion from 0 to 70 degrees, limited by moderate pain; extension from 0 to 25 degrees, limited by moderately severe pain; lateral flexion to 30 degrees, bilaterally, limited by mild pain; and rotation from 0 to 30 degrees, limited by mild pain.  While repeat testing reduced the Veteran's left lateral flexion from 0 to 15 degrees, right lateral flexion from 0 to 20 degrees, and rotation from 0 to 20 degrees, bilaterally, there was no evidence of deterioration in flexion or extension with respect to repeat testing .  All repetitive motion testing was limited by moderate to severe pain; however, there was minimal fatigue or lack of endurance during the testing.  On walking, the Veteran demonstrated a slight limp but a steady gait, and it was noted that he did not have a history of falls.  Although he used a lumbar support in his chair and his car, he did not wear a back brace nor did he need any assistive device for ambulation, such as a cane, crutches, or walker.  X-rays showed minimal to mild spondylosis, and there was no evidence of guarding or muscle spasm so as to result in an abnormal gait or abnormal spinal contour.  

On further examination, it was noted that the Veteran had a handicapped sticker on his car and that he could not drive for more than 45 minutes which stopping to walk around.  He was able to shower, bathe, and brush his teeth but with pain.  In addition, the Veteran demonstrated no weakness or tremors or impaired sensation, and his deep tendon reflexes were normal at 2+ and equal, bilaterally.  Not only were those findings essentially confirmed during the treatment by B. H. A., D.O., there was no evidence of chronic, identifiable bowel or bladder impairment associated with the Veteran's service-connected low back disorder.  

In sum, the preponderance of the evidence shows that the Veteran did not demonstrate limitation of motion, guarding, or spinal deformity which met or more nearly approximated the criteria for a rating in excess of 10 percent for his service-connected low back disorder prior to January 11, 2012.  While he did report episodes of severe incapacitating pain, he did not demonstrate associated objective evidence of pain wincing, muscle spasm, crepitation, or tenderness to palpation,.  38 C.F.R. § 4.59.  Therefore, for that period of time, the rating is confirmed and continued, and, to that extent, the appeal is denied.

On January 11, 2012, the Veteran was reexamined by VA.  Although he continued to raise complaints or pain and severe, incapacitating flare-ups, the limitation of motion deteriorated to the point where he was unable to flex his thoracolumbar spine to more than 30 degrees, and he experienced pain on flexion at 20 degrees.  Extension, lateral flexion, and rotation were also reduced to 10 degrees, 15 degrees, bilaterally; and 10 degrees, bilaterally, with pain.  Moreover, he could not perform repetitive testing due to pain.  

Not only did the Veteran demonstrate reduced motion, he experienced excess fatigue, instability of station, and reduced strength at 3/5.  Unlike the August 2006 VA examination, he also experienced guarding and muscle spasm which resulted in an abnormal gait requiring the use of a cane.  It was also noted that the Veteran had a walker and back brace.  In addition, the examiner found that the Veteran's service-connected low back disorder prevented him from driving, or participating in sports and recreation and had a severe impact on performing chores and traveling.  

Although the manifestations of the  Veteran's service-connected low back disorder had deteriorated by the time of his January 11, 2012 VA examination, imaging studies continued to confirm the presence of mild degenerative changes, and the examiner noted that Veteran did not have intervertebral disc syndrome.  Despite the deteriorating motion, there was no evidence of ankylosis, let alone unfavorable ankylosis of the entire thoracolumbar spine.  Absent such finding, the Veteran does not meet or more nearly reflect the criteria for a rating in excess of 40 percent.  Therefore, the current rating is confirmed and continued, and the appeal is denied. 

The Hearing Loss Disability

Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  For VA purposes, the severity of hearing impairment is determined by comparing audiometric test results in the conversational voice range (1000, 2000, 3000, and 4000 hertz) with the criteria set forth in 38 C.F.R. §§ 4.85 and 4.86.  Those codes establish eleven levels of auditory acuity, from Level I for lesser degrees of hearing impairment through Level XI for greater degrees of hearing impairment. A level of auditory acuity is determined for each ear, and then those levels are combined to give an overall level of hearing impairment. 38 C.F.R. § 4.85, Tables VI and VII. 

Where the pure tone thresholds are 30 decibels or less at frequencies of 1000 Hertz and below, and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be chosen from either Table VI or Table VIa, whichever results in the higher numeral.  Each ear will be evaluated separately.  38 C.F.R. § 4.86.  See 64 FR 25202. 25209, May 11, 1999.  

During the course of the appeal, the Veteran's hearing acuity was tested by VA on four occasions.  No other audiologic testing was reported.

In August 2006, VA audiometric testing revealed the following puretone thresholds at the indicated hertz levels:  




HERTZ



500
1000
2000
3000
4000
RIGHT
Not applicable (NA)
30
65
90
95
LEFT
NA
25
60
75
75

The average puretone threshold was 70 decibels in the right ear and 59 decibels in the left ear.  

Speech reception testing revealed 96 percent discrimination ability in the right ear and 80 percent discrimination ability in the left ear.  

A puretone threshold of 70 decibels with 96 percent discrimination ability is commensurate with Level II hearing acuity in the right ear.  In the left ear, a puretone threshold of 59 decibels with 80 percent discrimination ability is commensurate with Level IV hearing acuity.  When combined, Level II hearing acuity and Level IV hearing acuity warrant a noncompensable disability rating.  38 C.F.R. § 4.85, Tables VI and VII.  

During an October 2008 consultation with VA Audiology Service, audiometric testing revealed the following puretone thresholds at the indicated hertz levels:  





HERTZ



500
1000
2000
3000
4000
RIGHT
NA
25
65
85
85
LEFT
NA
25
65
65
70

The average puretone threshold was 65 decibels in the right ear and 56 decibels in the left ear.  

Speech reception testing revealed 88 percent discrimination ability in the right ear and 92 percent discrimination ability in the left ear.  

A puretone threshold of 65 decibels with 88 percent discrimination ability is commensurate with Level III hearing acuity in the right ear.  In the left ear, a puretone threshold of 56 decibels with 92 percent discrimination ability is commensurate with Level I hearing acuity.  When combined Level III hearing acuity and Level I hearing acuity also warrant a noncompensable disability rating.  38 C.F.R. § 4.85, Tables VI and VII.  


In December 2011, the Veteran was again seen in consultation with the VA Audiology Service.  Audiometric testing revealed the following puretone thresholds at the indicated hertz levels:  





HERTZ



500
1000
2000
3000
4000
RIGHT
NA
20
65
85
90
LEFT
NA
25
70
70
75

The average puretone threshold was 65 decibels in the right ear and 60 decibels in the left ear.  

Speech reception testing revealed 24 percent discrimination ability in the right ear and 84 percent discrimination ability in the left ear.  The examiner noted the decrease from the 88 percent discrimination ability in the right ear in October 2008 to 24 percent and counseled the Veteran to use his right ear more and to wear his hearing aids, consistently.  Up to that time, the Veteran stated that he had only worn his hearing aids in situations where he was confronted by background noise.  

A puretone threshold of 65 decibels with 24 percent discrimination ability is commensurate with Level XI hearing acuity in the right ear.  In the left ear, a puretone threshold of 60 decibels with 84 percent discrimination ability is commensurate with Level III hearing acuity.  When combined, Level XI hearing acuity and Level III hearing acuity warrant a 20 percent disability rating.  However, that does not end the inquiry.  

The left ear pure tone threshold of 25 decibels at 1000 Hertz and 70 decibels at 2000 Hertz, meet the criteria for consideration under Table VI or VIa, whichever results in the higher numeral.  Under Table VIA a puretone threshold of 60 decibels is compatible with Level IV hearing.  When combined with Level XI hearing acuity in the right ear, a 30 percent rating is warranted.  

Despite the results of the Veteran's right ear speech discrimination ability, the evidence strongly suggests that such a precipitous decline in the Veteran's right ear speech discrimination ability in December 2011 was an aberration.  Not only was it well outside of the results obtained in the two earlier tests, it would be well outside the results obtained during VA audiometric testing approximately one month later.    Indeed, the results of the speech discrimination testing performed during a VA audiologic examination in January 2012 were consistent with the test results obtained in 2006 and 2008.  Moreover, the puretone thresholds obtained by VA through all four tests were generally consistent.  Only the results of the December 2011 right ear speech discrimination stand out.  For these reasons, the Board concludes that the results of that testing were an aberration rather than a chronic deterioration in the Veteran's right ear hearing acuity which could support a compensable evaluation.  

In January 2012, VA audiometric testing revealed the following puretone thresholds at the indicated hertz levels:  




HERTZ



500
1000
2000
3000
4000
RIGHT
NA
20
65
85
90
LEFT
NA
25
65
80
75

The average puretone threshold was 65 decibels in the right ear and 61 decibels in the left ear.  

Speech reception testing revealed 72 percent discrimination ability in the right ear and 84 percent discrimination ability in the left ear.  

A puretone threshold of 65 decibels with 72 percent discrimination ability is commensurate with Level V hearing acuity in the right ear.  In the left ear, a puretone threshold of 61 decibels with 84 percent discrimination ability is commensurate with Level III hearing acuity.  When combined Level V hearing acuity and Level III hearing acuity warrant a 10 percent disability rating.  That is the disability rating currently in effect, and the Board concludes that  the overall level of hearing impairment is commensurate with that rating.  38 C.F.R. § 4.85, Table VII.  Thus, that rating is confirmed and continued, and the appeal is denied.

Extraschedular Considerations

In arriving at the foregoing decisions with respect to the increased rating claims, the Board has considered the possibility of referring this case to the Director of the VA Compensation and Pension Service for possible approval of an extraschedular rating for the Veteran's service-connected back disorder and hearing loss disability.  38 C.F.R. § 3.321(b)(1)  (2012).  Because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability.  Thun v. Peake, 22 Vet. App. 111, 114  (2008).  However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration.  Id.  The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). 

There is a three-step inquiry for determining whether a claimant is entitled to an extraschedular rating.  Thun, 22 Vet. App. at 115.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Board must compare the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Id.  If the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, in which case the assigned schedular evaluation is adequate and no referral is required.  Id.  Second, if the schedular evaluation is found to be inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors, such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a claimant's disability picture with such related factors as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating.

In this case, neither the Veteran nor his representative have expressly raised the matter of entitlement to an extraschedular rating.  The Veteran's contentions have been limited to those discussed above, i.e., that his back and hearing loss disabilities are more severe than reflected by the currently assigned schedular ratings.  See Brannon v. West, 12 Vet. App. 32  (1998) (while the Board must interpret a claimant's submissions broadly, the Board is not required to conjure up issues that were not raised by the claimant).  The criteria for rating degenerative disease of the lumbosacral spine specifically contemplate the Veteran's symptoms:  pain, fatigue, limitation of motion.  38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5242; DeLuca.  As noted above, the criteria for rating hearing impairment is derived by a mechanical application of the rating schedule and contemplate the results of puretone testing, speech discrimination testing, and the potential for alternative methods of rating.

In sum, the Veteran does not have symptoms associated with his degenerative disease of the lumbosacral spine or hearing loss disability that have been left uncompensated or unaccounted for by the assignment of a schedular rating.  Thun, 22 Vet. App. at 115.  Therefore, the preponderance of the evidence is against a finding that the Veteran's either disorder presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards.  Accordingly, further action is not warranted under 38 C.F.R. § 3.321 (b)(1) .


ORDER

New and material evidence having  been received, the request to reopen a claim of entitlement to service connection for chronic bronchitis is granted. 
Entitlement to a rating in excess of 10 percent is denied for degenerative arthritis of the lumbar spine, prior to January 11, 2012.  

Entitlement to a rating in excess of 40 percent is denied for degenerative arthritis of the lumbar spine, effective January 11, 2012.  

Entitlement to a compensable rating is denied for a bilateral hearing loss disability, prior to January 9, 2012.  

Entitlement to a rating in excess of 10 percent is denied for a bilateral hearing loss disability, effective January 9, 2012.  


REMAND

In light of the foregoing decision reopening the claim of entitlement to service connection for chronic bronchitis, VA may proceed to evaluate the merits of the claim.  Elkins.  However, it would be premature for the Board to do so prior to the RO, as such action could result in prejudice to the Veteran's claim.  Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993); VAOPGCPREC 16-92.  

During the course of the appeal, the Veteran raised contentions to the effect that his service-connected degenerative disease of the lumbosacral spine precluded him from obtaining or retaining substantially gainful employment.  In September 2006, the Veteran directed VA's attention to a copy of a note he sent from his treating physician, B. H. A., D.O.  The note was dated in February 2005 and stated that the Veteran was permanently unable to return to work due to his lumbar spondylosis.  

When, as in this case, the Veteran's schedular rating is less than total (for a single disability or combination of disabilities), a total rating may nonetheless be assigned provided that if there are two or more disabilities, at least one disability must be ratable at 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more, and the disabled person must be unable to secure or follow a substantially gainful occupation.  38 C.F.R. § 4.16(a) (2012). 

To date, VA has not adjudicated the Veteran's claim of entitlement to a TDIU.  However, it is clearly ancillary to his claims of entitlement to increased ratings for his service-connected degenerative disease of the lumbosacral spine and hearing loss disability. As such, the TDIU claim must be considered by the RO in conjunction with the increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009) (per curiam) (holding that claims for higher evaluations also include a claim for a TDIU when the appellant claims he is unable to work due to a service connected disability).  In this regard, the Board notes that the Veteran has not been notified of the information and evidence necessary to substantiate his claim. 38 U.S.C.A. §§ 5103 , 5103A (West 2002 and Supp. 2012); 38 C.F.R. § 3.159 (2012).  Moreover, he has not had a VA examination to determine whether his service-connected disorders, either collectively or individually, preclude his ability to obtain or retain substantially gainful employment.  

In light of the foregoing, the Board finds that additional development of the record is warranted prior to further consideration by the Board. Accordingly, the case is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D C. for the following actions:

1.  Notify the Veteran of VA's duties to notify and assist him in the development of his claim of entitlement to a TDIU.  38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012).

2.  When the actions in part 1, and any indicated development have been completed, schedule the Veteran for a comprehensive examination to determine the effect of his service-connected disabilities on his ability to work.  All indicated tests and studies must be performed, and any indicated consultations must be scheduled.

The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination, and the examiner must acknowledge receipt and review of these materials in any report generated as a result of this remand. 

The examiner must offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran is unable to secure or maintain substantially gainful employment solely as a result of his service-connected disabilities.  In so doing, the examiner must state how and why he or she reached the opinion they did.  

The Veteran is advised that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655 (2012). 

If the Veteran fails to report for the scheduled examination, a copy of the notice informing him of the date, time, and location of the examination must be associated with the claims folder.  If the notice is returned by the Post Office as undeliverable, that fact must be noted in writing and associated with the claims folder.  

3.  When the actions in parts 1 and 2 have been completed, adjudicate the issues of entitlement to service connection for chronic bronchitis and entitlement to a TDIU claim.  

If the benefits sought on appeal are not granted to the Veteran's satisfaction, the RO must issue the Veteran and his representative a Supplemental Statement of the Case and provide them an opportunity to respond.

By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue.

The Veteran need take no action, unless he is notified to do so.  However, he is advised that he has the right to submit additional evidence and argument on the matters which the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
KELLI A. KORDICH
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs