Citation Nr: 1322866	
Decision Date: 07/17/13    Archive Date: 07/24/13

DOCKET NO.  09-23 485	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.  

2.  Entitlement to service connection for bilateral tinnitus.

3.  Entitlement to a higher initial disability rating in excess of 20 percent for spondylosis of the thoracolumbar spine.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

A. Zenzano, Associate Counsel


INTRODUCTION

The Veteran had active duty service from May 1960 to June 1982.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  In his substantive appeal, the Veteran requested a Board hearing.  A hearing was scheduled for October 2010, but the Veteran did not report, and no good cause has been shown.  Thus, his hearing request is considered withdrawn.  See 38 C.F.R. § 20.702(d) (2012).

This appeal was previously remanded by the Board in November 2012 for further development.  The matter is now ready for adjudication.

The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  Affording the Veteran the benefit of the doubt, bilateral hearing loss was incurred during active service.  

2.  Affording the Veteran the benefit of the doubt, tinnitus was incurred during active service.  

3.  Throughout the entire appeal period, the Veteran's thoracolumbar spine disability has been manifested by forward flexion of at least 75 degrees with pain; medical evidence does not reflect any separately compensable neurological manifestations of thoracolumbar spine disability or incapacitating episodes associated with the thoracolumbar spine disability.
CONCLUSIONS OF LAW

1.  The criteria for service connection for bilateral hearing loss have been met.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.385 (2012).

2.  The criteria for service connection for tinnitus have been met.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).

3.  The criteria for an initial rating in excess of 20 percent for service-connected thoracolumbar spine disability are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

As the Board's decision regarding the Veteran's service connection claims is favorable, any VCAA deficiency concerning such is moot.  Accordingly, the Board will only address the adequacy of the VCAA notice and assistance in terms of the Veteran's increased rating claim.
Proper VCAA notice 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; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).  

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA 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.  Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  

VCAA notice must be provided prior to an initial unfavorable decision on a claim by the AOJ.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The Veteran's increased rating claim reflects his disagreement with the initial evaluation following the grant of service connection.  Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Therefore, no further notice is needed under the VCAA.
Next, VA has a duty to assist a veteran in the development of the claim.  This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary.  See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2011). 
After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  VA and private treatment records are of record.  Neither the Veteran nor his representative have identified any outstanding VA or non-VA treatment records that have not otherwise been obtained and included with the record. 
In July 2008, the Veteran was afforded a VA examination to assess the severity of his thoracolumbar spine disability.  As detailed below, the examiner did not address all of the necessary rating criteria in his examination, such that another VA examination was conducted in January 2013, pursuant to the Board's November 2012 remand order.  The Board finds this VA examination report to be thorough and adequate upon which to base a decision with regard to the Veteran's claim.  The VA examiner personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to evaluate his disability under the applicable rating criteria.  An additional addendum opinion was obtained by the AMC in May 2013 which further addresses relevant rating criteria.
Moreover, the RO/AMC substantially complied with the prior remand directives, to include requesting additional records and scheduling the above January 2013 examination.  Accordingly, the Board finds that the prior remand order has been substantially complied with.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where Board's remand instructions were substantially complied with). 

For these reasons, the Board concludes that VA has fulfilled its duties to notify and assist the Veteran and will proceed to a decision.  

II.  Service Connection Claims
The Veteran asserts that he is entitled to service connection for bilateral hearing loss and tinnitus as the result of noise exposure from serving as an artilleryman while in service.

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty.  See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service.  38 C.F.R. § 3.303(d).

To establish entitlement to direct service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The determination as to whether elements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).  

Certain chronic diseases, such as organic disease of the nervous system, shall be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period post service (one year for organic disease of the nervous system even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  VA's Veterans Benefits Administration Adjudication Manual states that "sensorineural hearing loss is considered an organic disease of the nervous system and is subject to presumptive service connection under 38 CFR 3.309(a)."  M21-1MR III.iv.4.B.12.a. 

With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes.  Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned.  When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b).   

The United States Court of Appeals for the Federal Circuit recently clarified that the provisions of 38 C.F.R. § 3.303(b) pertaining to the award of service connection on the basis of continuity of symptomatology (in lieu of a medical opinion) is limited to chronic diseases as defined in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

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

A veteran is not precluded from obtaining service connection for a current hearing loss disability where hearing was within normal limits on audiometric testing at separation from service if medical evidence shows that the current disability is causally related to service.  See Hensley v. Brown, 5 Vet. App. 155 (1993).

Turning to the facts of the case, the Board notes the Veteran's combat and artillery experience, and concedes the Veteran's in-service noise exposure, as such is consistent with the circumstances, conditions, or hardships of his service.  38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d); Collette v. Brown, 82 F.3d 389 (1996).  The Veteran also has current diagnoses of bilateral hearing loss per VA standards and tinnitus, as noted in the May 2013 VA examination.  Accordingly, Shedden elements one and two-a current disability and an in-service event-are satisfied for both hearing loss and tinnitus, and, as described below, the Board finds that the third Shedden element-a nexus between the claimed disabilities and service-is also shown such that the Board will award service connection.

Here, service treatment records include a February 1960 service entrance examination which was negative for any hearing-related complaints.  Whispered voice testing for both ears was 15/15, and audiometric test results (converted from ASA units to ISO units) were as follows:

 


HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
0
0
-5
LEFT
10
-5
0
0
-5
 
During service, the Veteran underwent several audiograms, all of which indicated bilateral hearing within normal limits.  At the Veteran's March 1982 retirement examination, he reported a positive history for hearing loss, and reported to the examining physician that he though he has had high frequency hearing loss since 1970.  A whispered voice test was not performed, but audiometric testing showed the following results:

 


HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
5
5
15
LEFT
0
5
5
10
15
 
In July 2008, the Veteran underwent a VA examination, during which he recounted in-service noise exposure from gunfire and artillery.  He stated that his hearing loss came on slowly and reported a history of buzzing in his ears, but could not recall the date of onset for either.  Audiometric testing showed the following results:
 


HERTZ



500
1000
2000
3000
4000
RIGHT
5
10
15
25
40
LEFT
5
5
10
25
30
 
Maryland CNC testing scores were 92 percent for the right ear and 96 percent for the left ear.

The examiner diagnosed the Veteran with bilateral tinnitus, and opined that tinnitus was at least as likely as not a symptom of hearing loss.  Regarding the Veteran's hearing, the examiner noted moderate sensorineural hearing loss at 4000 Hz for the right ear, and mild sensorineural hearing loss at 4000 Hz for the left ear.  He then opined that the Veteran's hearing loss was not likely related to military noise exposure, noting that his hearing was within normal limits at his March 1982 retirement examination.  The examiner then noted the Veteran's service treatment records were silent for complaints of tinnitus, and found that such was also less likely than not related to in-service noise exposure.

In November 2012, the Board found that the rationale provided by the July 2008 examiner was insufficient, and the case was remanded for another audiological examination and opinion, conducted in May 2013, by the same examiner who conducted the prior examination.

At this examination, audiometric testing showed the following results:
 


HERTZ



500
1000
2000
3000
4000
RIGHT
10
15
30
40
65
LEFT
10
10
20
40
40
 
Maryland CNC testing scores were 92 percent for both ears.  The examiner noted diagnoses of bilateral sensorineural hearing loss and tinnitus, and provided a negative opinion regarding a relationship between the Veteran's hearing deficiencies and service.  With respect to the Veteran's hearing loss, the examiner noted the Veteran's many in-service audiograms and stated that there were no significant threshold shifts from the date of his service entrance through service retirement.  He noted the Veteran's complaint of in-service decreased hearing acuity, but stating that this was not supported by his in-service audiograms.  The examiner applied essentially the same reasoning in finding that the Veteran's tinnitus was also not related to in-service noise exposure.

Here, the Board notes that the July 2008 and May 2013 VA examination opinions run afoul to Hensley as the only basis for the examiner's negative opinion regarding hearing loss is that the Veteran retired from service with hearing within normal limits.  The examiner failed to explain why the absence of hearing loss at service separation would preclude a relationship between a later onset of such and in-service noise exposure.  As the examiner found in July 2008 that the Veteran's tinnitus was related to his hearing loss, but failed to provide a sufficient opinion regarding the Veteran's hearing loss in either the July 2008 or May 2013 opinions, the Board also finds his May 2013 negative opinion regarding the etiology of the Veteran's tinnitus to be problematic.  Accordingly, these opinions are of little probative value to the Board.

Instead, the Board finds the other evidence of record sufficient to grant the Veteran's claims.

In particular, the Board notes that the Veteran is competent to report symptoms such as diminished hearing and buzzing in his ears because this requires only personal knowledge as it comes to him through his senses.  Layno v. Brown, 6 Vet. App. 465, 470 (1994).  
Lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection.  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.").
The Board also finds the Veteran's statements to be credible, as there is internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  See Caluza v. Brown, 7 Vet. App. 498 (1995).  Specifically, the Board finds it significant that the Veteran asserted at his service retirement examination in March 1982-decades prior to filing his hearing loss and tinnitus claims-that he perceived diminished hearing since 1970.  The Board accords such statements, recorded contemporaneously with the Veteran's service, high probative value.  See generally Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding the Board's assignment of higher probative value to a contemporaneous letter a veteran wrote during VA hospitalization than to the Veteran's subsequent assertion years later).  Additionally, while audiometric testing results, compared from the Veteran's service entrance and service retirement examinations both show hearing well within normal limits, they do indicate a slight worsening of hearing towards the higher frequencies; this is especially seen at 4000 Hz.  Moreover, the Board finds it plausible that the Veteran had hearing loss during the years after service, as he made a contemporaneous statement in 1982.  This statement, when juxtaposed to statements made at the 2008 VA examination, (that he did not remember when the buzzing and hearing loss started), lends to his credibility since he honestly answered the question in 2008, even though it was against his self interest.  

While tinnitus is not a chronic disease for which service connection may be established through a showing of continuity of symptomatology, the Board notes the July 2008 VA examiner's finding that the Veteran's tinnitus was a product of his hearing loss, such that an award of service connection for hearing loss also entails such for tinnitus.  

Because the evidence in this case is at least in equipoise with regard to the cause of the Veteran's bilateral hearing loss and tinnitus, service connection is warranted and the claims must be granted.  


III.  Increased Rating Claim

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7.  All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3.

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities.  38 C.F.R. § 4.14. 

Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate.  See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999).

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements.  In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness.  DeLuca v. Brown, 8 Vet. App. 202 (1995).

Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. §§ 4.10, 4.40, 4.45.  The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).  In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system."  Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance."  Id., quoting 38 C.F.R. § 4.40. 

Furthermore, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint.  The joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.  38 C.F.R. § 4.59.  In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. 
§ 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis context, the Board should address its applicability. 

The Schedule for Rating Criteria indicates that disabilities of the spine under Diagnostic Codes 5235 to 5243 will be evaluated under a General Rating Formula for Diseases and Injuries of the Spine.  The General Rating Formula assigns evaluations with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of the injury or disease.  Under this formula, a 100 percent evaluation is appropriate for unfavorable ankylosis of the entire spine; a 50 percent evaluation is appropriate for unfavorable ankylosis of the entire thoracolumbar spine; a 40 percent evaluation is appropriate for favorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 30 percent evaluation is appropriate for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine.  A 20 percent evaluation is appropriate where there is 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.  A 10 percent evaluation is appropriate where there is 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 the height.  38 C.F.R. § 4.71a, DC 5237.

Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."  Colayong v. West, 12 Vet. App. 524 (1999) (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (28TH Ed. 1994) at 86).

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, Note (2).

Disorders of the spine may also be rated under DC 5243, Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes.  Under this code a 10 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months; a 20 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months.  38 C.F.R. § 4.71a, DC 5243.

Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code.  38 C.F.R. § 4.71a, Note (1).

When peripheral nerves are affected by disabilities of the spine, they are to be rated separately under Diagnostic Code 8520.

The Veteran contends that he is entitled to a higher disability rating for his thoracolumbar spine disability.  Such disability has been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242, as 20 percent disabling, effective February 20, 2008.  

At the July 2008 VA examination, the Veteran reported experiencing a constant dull pain in his lumbar region, with some radiation of pain to the bilateral lower extremities, but denied any numbness and tingling to the lower extremities.  He denied any bowel, bladder or erectile dysfunction.  The Veteran also denied any flare-ups.  He ambulated with a normal gait.  On examination, there were no muscle spasms or guarding, but pain on palpation was present.  Range of motion testing revealed right rotation to 20 degrees, left rotation to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, flexion to 75 degrees and extension to 20 degrees.  Pain was present at the maximum degree for all ranges tested; repetitive motion testing was not performed.  Neurological testing of the bilateral lower extremities revealed 5/5 motor muscle strength, normal sensory response and normal deep tendon reflexes.  With regard to the DeLuca factors, the examiner stated that he could not determine, without resort to mere speculation, whether pain, including pain on repetition, fatigue, weakness, lack of endurance or incoordination cause additional functional loss to the thoracolumbar spine.

The Veteran was again examined in January 2013.  He reported intermittent back pain, and denied any radiation.  He relayed that he has flare-ups, for which he lies down and takes Aleve, and reported an episode which lasted "several days."  Range of motion testing revealed right rotation to 30 degrees or greater, left rotation to 30 degrees or greater, right lateral flexion to 25 degrees, left lateral flexion to 30 degrees or greater, flexion to 80 degrees and extension to 30 degrees or greater.  There was no objective evidence of painful motion during range of motion testing.  The Veteran's range of motion was not diminished after repetitive-use testing, and there was no functional loss and/or function impairment.  Pain to palpation, guarding and muscle spasm were absent.  Reflexes and muscle strength were normal.  Findings were negative for radiculopathy or any other neurological impairment, and for IVDS.

In May 2013, an addendum opinion was obtained.  The examiner reviewed the January 2013 VA examination, and remarked that there were no complaints of radicular pain, pain that worsens with back extension, abnormal reflexes, or thigh fatigue/weakness with ambulation that improves with rest.

Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that the orthopedic manifestations of the Veteran's thoracolumbar spine are appropriately evaluated as 20 percent disabling for the entire appeal period.   

As noted above, under the General Rating Formula, the next higher, 40 percent rating is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine.  Here, however, there have been no such findings.  There are no findings of ankylosis of any portion of the spine.  As for limited motion, medical evidence shows flexion to at least 75 degrees.  As such, there is no evidence of flexion limited to 30 degrees or less, and, therefore, no basis for a 40 percent rating under the General Rating Formula.

As indicated above, evaluation of the disability at issue must include consideration of functional loss due to pain and other factors, as mandated  by 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. at 204-7 (1995).  See also Cullen v. Shinseki, 24 Vet. App. 74, 85 (2010) (holding that, when rating spine disabilities, the Board must discuss any additional limitation of motion that a Veteran has due to pain, weakness, or fatigue).  Moreover, pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point where pain begins.  See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995).  

Here, during the July 2008 VA examination, pain upon range of motion testing was present during the July 2008 VA examination but not at the January 2013 VA examination.  While the July 2008 VA examiner did not provide an opinion with respect to the DeLuca factors, the January 2013 VA examiner specifically found that, in addition to there being no objective evidence of painful motion during range of motion testing, the Veteran's range of motion was not diminished after repetitive-use testing, and there was no functional loss and/or functional impairment.  Here, too, the Board notes the May 2013 VA addendum opinion, which noted that there were no complaints of radicular pain, pain that worsens with back extension, abnormal reflexes, or thigh fatigue/weakness with ambulation that improves with rest.  

Accordingly, the Veteran's overall disability picture simply does not reflect that which is required to meet the criteria for the next higher, 40 percent, rating under the General Rating Formula for Diseases and Injuries of the Spine at any pertinent point.  The Board notes that the medical evidence shows the Veteran has a range of motion which would more appropriately place him in the 10 percent rating category, which is assigned where there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees.  Accordingly, the 20 percent rating contemplates the Veteran's claimed additional disability attributable to his reported pain and functional loss (symptoms of which were notably absent at the January 2013 VA examination).

The Board has also considered whether a higher rating is assignable under the criteria specific to disc disease, or, IVDS, but finds that the evidence does not support such. 

In this case, the Veteran has reported that he suffers from flare-ups, for which he lies down and takes Aleve, and detailed such an incident to the January 2013 VA examiner, stating it lasted "several days."  However, the medical record is devoid of evidence showing that bed rest was prescribed by a physician at any time pertinent to the period under consideration.  Moreover, to warrant a 40 percent rating for IVDS, an incapacitating episode must last at least 4 weeks; the incident the Veteran described lasted "several days." 

Nor is an increased disability rating warranted based upon the granting of a separate neurologic disability rating related to the thoracolumbar spine.  Here, the evidence of record does not show the existence of any associated neurologic abnormalities, such as bladder or bowel complaints, or radiculopathy, that are related to the service-connected thoracolumbar strain.  Moreover, the objective evidence does not show, nor does the Veteran allege, that he experiences any neurological symptomatology due to his service-connected thoracolumbar strain.  Though the Veteran reported experiencing some radiation of pain to the bilateral lower extremities at the July 2008 VA examination, he denied any numbness and tingling to the lower extremities, and the examiner did not render a diagnosis of radiculopathy.  Additionally, the Veteran's motor, sensory, and reflex examinations in July 2008 and January 2013 were all normal.  Therefore, a separate rating is not warranted for neurological impairment, as no such impairment is shown.

Additionally, the Board has considered the Veteran's statements that a higher disability rating is warranted for his thoracolumbar disability.  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

In this case, the Veteran is competent to report his thoracolumbar spine symptoms because this requires only personal knowledge as it comes to him through his senses.  Layno, 6 Vet. App. at 470.  He is not, however, competent to identify a specific level of disability relating a thoracolumbar spine disability to the appropriate diagnostic codes.  On the other hand, such competent evidence concerning the nature and extent of the Veteran's disability has been provided by the VA examiner who examined him during the current appeal and who has provided relevant medical findings in conjunction with the examination.  In this regard, the medical findings (as provided in the examination report) directly address the criteria under which his disability is evaluated.

The Board concludes that the medical findings on examination are of greater probative value than the Veteran's allegations regarding the severity of his thoracolumbar disability.  The symptomatology noted in the medical and lay evidence has been adequately addressed by the evaluations assigned and do not more nearly approximate the criteria for higher evaluations at any time during the appeal period.  See 38 C.F.R. §§ 4.71a, Diagnostic Codes 5237, 5243, 4.124a, Diagnostic Code 8520; see also Fenderson, supra. 

The Board has considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected thoracolumbar spine disability; however, the Board finds that his symptomatology has been stable throughout the appeal.  Therefore, assigning staged ratings for such disability is not warranted. 

Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration.  An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable.  38 C.F.R. § 3.321(b)(1). 

In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321  are applied.  Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under 
§ 3.321 is a three-step inquiry.  First, it must be determined 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 Court indicated that there must be a comparison between 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.  Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.

Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization."  Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating.  Id. 

The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected thoracolumbar spine disability with the established criteria found in the rating schedule.  The Board finds that the Veteran's thoracolumbar spine symptomatology is fully addressed by the rating criteria under which such disability is rated.  Specifically, the Veteran's 20 percent rating for his thoracolumbar strain contemplate his subjective complaints of pain, and in fact is more than adequate for his demonstrated range of motion.  Therefore, there are no additional symptoms of the Veteran's thoracolumbar strain that are not addressed by the rating schedule.  Thus, the Board finds that the rating criteria reasonably describes the Veteran's disability level and symptomatology of his service-connected disability.  As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture.  Accordingly, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization.  Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). 

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a total disability rating based on individual unemployability (TDIU) will be considered "part and parcel" of the claim for benefits for the underlying disability.  In the instant case, the Veteran has not alleged that his thoracolumbar spine disability renders him unemployable.  In fact, he stated to the January 2013 VA examiner that he was retired.  Therefore, the issue of a TDIU has not been raised and no further consideration of such is necessary.   

In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine.  However, the preponderance of the evidence is against the Veteran's claim of entitlement to an initial rating in excess of 20 percent for a thoracolumbar disability.  As such, that doctrine is not applicable in the instant appeal, and his claim must be denied.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. 


ORDER

Service connection for bilateral hearing loss is granted.

Service connection for tinnitus is granted.

An initial rating in excess of 20 percent for thoracolumbar strain is denied.



____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs