Citation Nr: 1324876 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 09-22 395 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a compensable rating for lumbar strain. 2. Entitlement to a compensable rating for bilateral hearing loss. 3. Entitlement to an effective date prior to November 19, 2005, for the grant of service connection for bilateral hearing loss. 4. Entitlement to an effective date prior to November 19, 2005, for the grant of service connection (and a compensable rating) for tinnitus. ATTORNEY FOR THE BOARD L. Zobrist, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty for training with the Army National Guard from November 1998 to April 1999, was called to active duty in the Army Reserves from July 2004 to November 2005, and has been on active duty with the Army from October 1, 2008, to the present. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Cleveland, Ohio, Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for lumbar strain, rated 0 percent, effective November 19, 2005, and a July 2009 rating decision of the Cleveland RO that granted service connection for bilateral hearing loss, rated 0 percent, and tinnitus, rated 10 percent, both also effective November 19, 2005. In May 2013, after the case was certified to the Board, the Veteran submitted additional evidence (to the Board) with a written waiver of RO consideration. See 38 C.F.R. § 20.1304. [Notably, the additional submission consists entirely of duplicates or evidence that is not relevant, and does not require waiver.] Also, as a preliminary matter, the Board notes that the Veteran has apparently recently again changed his mailing address. In January 2013, he reported a new address in Pataskala, Ohio. While VA mailings to him at that address in March 2013 appear to have been delivered, a May 2013 letter confirming that the Board received his file was returned. On remand, his current mailing address should be ascertained and entered in the record. The matter of the rating for bilateral hearing loss is being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran if any action on his part is required. FINDINGS OF FACT 1. At no time during the appeal period is the Veteran's service-connected lumbar strain shown to have been manifested by forward flexion limited to 85 degrees or less, combined range of motion limited to 235 degrees or less, muscle spasm, guarding, or localized tenderness; vertebral fracture and neurological symptoms are not shown. 2. The earliest communication from the Veteran seeking service connection for bilateral hearing loss was received on May 31, 2006. 3. The earliest communication from the Veteran seeking service connection for tinnitus was received on September 28, 2006. CONCLUSIONS OF LAW 1. A compensable rating for lumbar strain is not warranted. 38 U.S.C.A. §§ 1155, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.31, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (Code) 5237 (2012). 2. An effective date earlier than November 19, 2005, is not warranted for the award of service connection for bilateral hearing loss. 38 U.S.C.A. § 5101, 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.1, 3.151, 3.155, 3.400 (2012). 3. An effective date earlier than November 19, 2005, is not warranted for the award of service connection and a compensable rating for tinnitus. 38 U.S.C.A. § 5101, 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.1, 3.151, 3.155, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). As the rating decisions on appeal granted service connection and assigned disability ratings and effective dates for the awards, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). June 2009 and February 2010 statements of the case (SOC) provided notice on the "downstream" issues of entitlement to increased initial ratings and earlier effective dates, while a February 2013 supplemental SOC (SSOC) readjudicated the matter after the appellant and his representative responded and further development was completed. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). The Veteran has had ample opportunity to respond/supplement the record. He has not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) ( "where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing the rule of prejudicial error). The Veteran's service treatment records (STRs) and service personnel records, through November 2005, and pertinent private treatment records have been secured. The RO arranged for a VA examination in September 2006. This examination is adequate for rating purposes as the examiner obtained a reported history from the Veteran, conducted thorough examinations, and noted the functional loss due to the tinnitus, and lumbar strain disabilities. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). The Board notes that the VA examination report contains sufficiently specific clinical findings and informed discussion of the pertinent history and features of the disability on appeal to provide probative medical evidence adequate for rating purposes. All evidence relevant to the appellant's claims has been secured. Notably, determinations regarding effective dates of awards are based essentially on what was shown by the record at various points in time and application of governing law to those findings. Generally, further development of the evidence is not necessary unless it is alleged that evidence constructively of record is outstanding. The appellant has not alleged that any pertinent evidence remains outstanding. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. The Board notes that the most recent correspondence sent to the Veteran was returned as undeliverable. However, the record reflects that the Veteran was previously informed of the necessary information relevant to his appeal and that the returned correspondence does not reflect any prejudice to the Veteran. Thus, the Board finds that VA's duty to assist is met. Accordingly, the Board will address the merits of the claims. Legal Criteria, Factual Background, and Analysis The Board has reviewed all the evidence in the Veteran's claims file, and in "Virtual VA" (VA's electronic data storage system), with an emphasis on the evidence relevant to the matter on appeal. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that each item of evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, including the degree of disability, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which the case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Rating for Lumbar Spine Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from a disability. Separate diagnostic codes provide the criteria for rating individual disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Ratings for lumbar strain are assigned under Code 5237 and the General Rating Formula for Diseases and Injuries of the Spine (General Formula). 38 C.F.R. § 4.71a. The criteria in the General Formula apply regardless of whether there are 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. They specify: Unfavorable ankylosis of the entire thoracolumbar spine - 50 [percent]. ... [f]orward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine - 40 [percent]. Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis - 20 [percent]. Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of height - 10 [percent]. Note (1): [VA will e]valuate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): . . . 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, each, and left and right lateral rotation are zero to 30 degrees, each. 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. In every instance where the Schedule does not provide a zero percent evaluation for a Diagnostic Code, a zero percent evaluation is to be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. When a question arises as to which of two ratings shall be applied under a particular diagnostic code, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. Where (as here) the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). As the current 0 percent rating assigned for the Veteran's lumbar strain encompasses the greatest level of impairment shown at any time during the appeal period, "staged ratings" are not warranted. The Veteran's claim seeking service connection for a low back disability was received in May 2006, less than one year after his November 2005 discharge from active duty service. He has not identified any treatment for his back during the evaluation period (since the award of service connection). The record shows that during prior active duty he was seen for myalgia. On September 2006 (with October 2006 addendum) VA examination of the Veteran's back, the examiner noted the Veteran's complaints of lumbar pain, stiffness, fatigability, and lack of endurance, especially in the morning, and that he is unable to run or do pushups due to painful shoulders and knees, although he can daily walk on a cushioned treadmill for a mile-and-a-half. He indicated he experiences back pain on exertion and that, when it is cold or wet or when he stands in one place for a long time, he experiences flare-ups characterized by pain throughout the day and not just in the morning. On examination, the Veteran's gait was normal. Forward flexion was 0 to 90 degrees, without pain. Extension, right and left lateral flexion, and right and left lateral rotation were from 0 to 30 degrees, each, without pain. There was no additional limitation following repetitive use. There was no objective evidence of painful motion, spasm, muscle weakness, or tenderness. The Veteran denied any incapacitating episodes in the past year and did not require assistive devices to ambulate. The examiner noted the Veteran's assertion that "the back pain would have made a difference in his old job as a civilian police officer; however, he does not have that job anymore" and that he was scheduled to start a new job as a mail carrier the following Monday. X-rays of the lumbar spine were reviewed in October 2006 and interpreted as normal. A 10 percent rating for lumbar strain under the General Formula requires forward flexion of the thoracolumbar spine limited to 85 degrees, combined range of motion limited to 235 degrees; muscle spasm, guarding, or localized tenderness (not resulting in abnormal gait or abnormal spine contour); or vertebral body fracture with loss of 50 percent or more of the height. As was reported above, the Veteran's ranges of motion on September 2006 examination were all normal and without pain, muscle spasm, guarding, or localized tenderness. While the Veteran indicated on examination that he would have occasional flare-ups when motion was painful, the frequency, scope, and associated impairment of function with such flare-ups was not identified. Notably, there is no evidence that during the evaluation period the Veteran had a flare-up episode that required medical attention; he has not identified any such period. Consequently, a rating based on impairment during periods of flare-ups could not be assigned without resort to mere speculation. There is no evidence (or allegation) of related neurological symptoms. The schedular criteria for the minimum compensable (10 percent) rating under the General Formula are not met. Consequently, a compensable schedular rating for lumbar strain is not warranted. See 38 C.F.R. § 4.31. The Board has also considered whether referral for extraschedular consideration is indicated. The evidentiary record does not show any manifestations of, or functional impairment due to, the Veteran's lumbar strain and not encompassed by the criteria for the schedular rating assigned. The functional loss noted on the September 2006 VA spine examination (reports of some pain, fatigability, and lack of endurance and flare-ups with no elaboration as to frequency, duration, and scope of additional limitations during such) is fully contemplated by the schedular criteria. Therefore, those criteria clearly are not inadequate, and referral for extraschedular consideration is not warranted. See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). Finally, the Veteran has been employed or seeking employment throughout the appeal period (and he is now again on active duty). Hence, the matter of entitlement to a total disability rating based on individual unemployability is not raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The preponderance of the evidence is against this claim; therefore, the appeal in the matter must be denied. Earlier Effective Date Claims Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later (emphasis added). 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. If the claim is received within one year after separation from service, the effective date will be the date following service separation or the date entitlement arose. 38 U.S.C.A. § 5110(a), (b); 38 C.F.R. § 3.400(b)(2). The Veteran's DD 214 reflects that he was discharged from active duty service on November 18, 2005. His claims of service connection for hearing loss and tinnitus were filed in May 2006. He does not allege a prior filing. Because the filing was within one year following discharge from active duty, he is entitled to have the date following the day of his discharge from duty as the date of claim for effective date of award of service connection. See 38 C.F.R. § 3.400(b)(2). Entitlement to service connection (and compensation) for hearing loss and tinnitus also arose upon his discharge from active duty service. There is no legal authority for the award of service connection prior to the date of a claim for such benefit or prior to the date entitlement arose. Consequently, the law is dispositive. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). As a matter of law, the Veteran's claims seeking effective dates for his awards prior to the filing of claims for such benefits must be denied. ORDER A compensable rating for lumbar strain is denied. An effective date prior to November 19, 2005, for the award of service connection for bilateral hearing loss is denied. An effective date prior to November 19, 2005, for the award of service connection (and a compensable rating) for tinnitus is denied. REMAND Regarding the rating for hearing loss disability, the Board finds that proper adjudication of the matter based on the record, as it currently stands, is not possible, and that additional development of the evidentiary record is necessary; VA's duty to assist mandated under the VCAA has not been met. Audiometry on September 2006 VA examination did not show loss of auditory acuity sufficient to warrant a schedular compensable rating. The veteran alleges worsening since. If he had audiometry performed on entrance examination for his active duty service beginning in October 2008 (as is the general practice), such audiometry (which would be of record) could potentially show loss of hearing to a compensable degree during the evidentiary period (until he returned to active duty). Consequently, the report of that examination must be sought. Accordingly, the case is REMANDED for the following: 1. The RO should verify the Veteran's current mailing address and update VA information storage systems appropriately. 2. The RO should secure for association with the record a copy of the report of the Veteran's October 2008 entrance examination (and specifically any audiometry conducted at the time.) If such record is unavailable (or if audiometry was not conducted) it should be so noted in the record, with explanation. 3. The RO should then review the record and readjudicate the claim for a compensable rating for bilateral hearing loss. If the benefit sought on appeal remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter 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 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). ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs